9999
 
                                          Filed September 28, 1990
 
                                          CLAIR R. CRAMER     
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            TERRY FRANKS,                 :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 784334
 
            CITY OF COUNCIL BLUFFS,       :
 
                                          :        A P P E A L
 
                 Employer,                :
 
                                          :      D E C I S I O N
 
            and                           :
 
                                          :
 
            ARGONAUT INSURANCE CO.,       :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            9999
 
            Summary affirmance of deputy's decision, with brief 
 
            additional analysis.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TERRY FRANKS,
 
         
 
              Claimant,                          File No. 784334
 
         
 
         vs.                                  A R B I T R A T I O N
 
         
 
         CITY OF COUNCIL BLUFFS,                 D E C I S I O N
 
         
 
              Employer,
 
                                                    F I L E D
 
         and
 
                                                   DEC 18 1989
 
         ARGONAUT INSURANCE CO.,
 
                                               INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
             This is a proceeding in arbitration brought by Terry Franks, 
 
         claimant, against the City of Council Bluffs, Iowa, employer, and 
 
         Argonaut Insurance Company, insurance carrier, for benefits as 
 
         the result of an injury that occurred on January 4, 1985.  A 
 
         hearing was held at Council Bluffs, Iowa, on July 7, 1988, and 
 
         the case was fully submitted at the close of the hearing.  The 
 
         record consists of the testimony of Terry Franks, claimant; 
 
         Elizabeth A. Case, risk manager; Cecilia Blaskovich, vocational 
 
         rehabilitation consultant; claimant's exhibit's A through F and 
 
         defendants' exhibits 1 through 16.  Defendants ordered a 
 
         transcript and made the original available to the industrial 
 
         commissioner's office. Defendants' attorney submitted an 
 
         excellent posthearing brief. Claimant's attorney did not file a 
 
         posthearing brief.
 
         
 
                                   STIPULATIONS
 
         
 
             The parties stipulated to the  following matters:
 
             That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
             
 
             That claimant sustained an injury on January 4, 1985, which 
 
         arose out of and in the course of employment with employer.
 
         
 
             That the injury was the cause of both temporary and 
 
         permanent disability.
 
         
 
             That claimant is entitled to temporary disability benefits 
 
         from January 4, 1985 through February 25, 1987; that claimant was 
 
         paid and received benefits for this period of time; and that 
 
         claimant's entitlement to temporary disability benefits is not an 
 
         issue in dispute in this case at this time.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
             
 
             That the commencement date for permanent partial disability 
 
         benefits, in the event such benefits are awarded, is February 26, 
 
         1987.
 
             
 
             That the rate of compensation in, the event of an award of 
 
         benefits, is $195.58 per week.
 
             
 
             That all requested medical benefits have been or will be 
 
         paid by defendants.
 
             
 
             That defendants make no claim for benefits paid prior to 
 
         hearing under an employee nonoccupational group health plan.
 
             
 
             That defendants are entitled to a credit for 111 4/7 weeks 
 
         of healing period benefits and 52.8 weeks of permanent partial 
 
         disability benefits paid as workers' compensation benefits prior 
 
         to hearing in the amount of $195.58 per week.
 
             
 
             That there are no bifurcated claims.
 
             
 
                                      ISSUES
 
             
 
             The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
             
 
             Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the nature and extent of benefits to which 
 
         he is entitled, to include whether he is entitled to scheduled 
 
         member benefits or industrial disability benefits.
 
             
 
             Whether claimant is an odd-lot employee.
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
             Claimant, born April 8, 1943, was 41 years old at the time 
 
         of injury and 45 years old at the time of the hearing.  He is 
 
         married and has one dependant child.  He quit school in the 
 
         eleventh grade, but later obtained a G.E.D. in 1974.  He also 
 
         completed a one year basic automotive course at Western Iowa 
 
         Community College in 1978 and 1979 and received a certificate of 
 
         completion, but never took a job to employ this knowledge.  He 
 
         was a United States Marine for six years and served two tours in 
 
         Viet Nam from approximately 1968 to 1974.  Past employments are 
 
         manual labor jobs such as digging ditches, loading and unloading 
 
         semi-trailers and box cars and working as a plumber's helper.  He 
 
         said that he might have acted as a straw boss on occasion in 
 
         these various jobs, but was never an official supervisor or 
 
         foreman (defendants' exhibits 9 and 16).
 
         
 
             Claimant started to work for the city on April 9, 1979 as a 
 
         utility worker I.  He became an equipment operator I on January 
 
         17, 1981, operating several kinds of heavy equipment, primarily 
 
         however, claimant usually operated a front-end loader.  He was 
 
         terminated on April 27, 1987, because of his medical inability to 
 
         perform this job after the injury (Def. ex. D, claimant's ex. 
 
         15).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
             
 
             At the time of the injury on January 4, 1985, claimant was 
 
         descending some stairs in a house that was being torn down by the 
 
         city when he fell and injured his right leg and ankle.  Claimant 
 
         was uncertain about how or why he happened to fall.  All he 
 
         remembers is that he fell, heard a pop or a snap, and then it 
 
         felt like ten thousand needles went through his body.  He was 
 
         taken to the hospital by ambulance.
 
         
 
             Timothy C. Fitzgibbons, M.D., an orthopedic surgeon, became 
 
         the treating physician.  He first saw and treated claimant in the 
 
         emergency room and his treatment continued on through June 2, 
 
         1987.  He saw claimant a number of times and reported to the 
 
         insurance carrier several times.  Most of this data is summarized 
 
         in his deposition which follows.
 
             
 
             The parties stipulated that claimant was entitled to 
 
         temporary disability benefits from January 4, 1985 until February 
 
         27, 1987.
 
             
 
             On January 27, 1987, Dr. Fitzgibbons determined claimant 
 
         could not go back to his former work and vocational 
 
         rehabilitation was recommended.  He continued to keep claimant 
 
         off work, but gave this impairment rating:
 
         
 
              In terms of a permanent impairment rating, I note, on the 
 
              patient's last examination, that he lacked 10-degrees of    
 
              plantar flexion and 10-degrees of dorsiflexion.  This, using 
 
              the AMA Guide, gives him a 4 percent impairment of the lower 
 
              extremity, for each of these two differences, for a total of 
 
              8 percent just for his ankle motion loss.  He also has a 
 
              malrotational deformity to his tibia, as well as a secondary 
 
              compensatory rotation of his entire extremity, because of 
 
              the tightness that he has of his heel cord and ankle joint.
 
              
 
              Putting this altogether, I would feel that a 20 percent 
 
              permanent partial disability rating of the right lower 
 
              extremity would be justified.
 
         
 
         (ex. 5, p. 2)
 
         
 
             Peter D. Wirtz, M.D., an orthopedic surgeon performed an 
 
         independent medical examination of claimant for defendants on 
 
         January 28, 1987.  He found the right leg 1/4 inch shorter than 
 
         the left.  He made these findings:
 
         
 
              Diagnosis:  (1) Healed tibia-fibula fracture, right.  (2) 
 
              External rotation 10 degrees right.  (3) Subtalar and ankle 
 
              joint stiffness secondary to fracture.
 
              
 
              This patient's plantar flexion loss of 20 degrees is a 7% 
 
              impairment of the lower extremity and the dorsiflexion of 5 
 
              degrees is a 2% impairment of the lower extremity.  The 
 
              inversion loss of 10 degrees is 2% impairment of the lower 
 
              extremity and the eversion is a 10 degree loss which is a 2% 
 
              impairment of the lower extremity.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              Summations of these loss of motion impairments is a 10% 
 
              impairment of the lower extremity.  The external rotation 
 
              attitude of the leg is a 2% impairment of the lower 
 
              extremity.  Total impairment is an 11% impairment of the 
 
              lower extremity.
 
              
 
              This patients (sic] healed fracture residuals of stiffness, 
 
              angulation and rotation are a result of the severity of this 
 
              injury.  They will impair his function tb a slight degree, 
 
              but will restrict his pre-injury work status, specifically 
 
              his ability to do heavy labor, climb on and off machinery, 
 
              as well as using ladders.  The subtalar loss of motion makes 
 
              walking on rough ground less efficient but capable of such 
 
              on a slower basis.
 
         
 
         (ex. 4, p. 2)
 
         
 
         
 
             Employer had claimant examined by another independent 
 
         medical examiner, Ronald W. Olnhausen, M.D., on May 5, 1987.  Dr. 
 
         Olnhausen found claimant sustained a severe fracture to the right 
 
         tibia and ankle, has had extensive treatment and rehabilitation, 
 
         but continued to have persistent disability that had not improved 
 
         significantly in the past few months.  The basic disability was 
 
         painful ambulation.  Climbing stairs, walking on uneven surfaces 
 
         and other activities caused redness, swelling and pain.  Several 
 
         orthopedists had nothing further to offer.  The doctor found the 
 
         right leg shortened by one-half to one inch, the right foot 
 
         rotated externally, swelling of the ankle, and limitation of 
 
         motion of the ankle.  He wears a lift in his right shoe and walks 
 
         with a limp with his right foot externally rotated outward.
 
         
 
              Dr. Olnhausen concluded as follows:
 
              
 
              Impression and recommendations:  This patient has had a 
 
              previous diagnosis of a comminuted fracture of the right 
 
              tibia and fibula with involvement of the ankle.  He has 
 
              definite residual defect including shortening of the leg, 
 
              limited motion of the ankle and some post traumatic symptoms 
 
              of the ankle including swelling and painful ambulation.  In 
 
              reviewing the job descriptions of Mr. Franks, I feel that he 
 
              would not be able to perform these activities either now or 
 
              in the foreseeable future.  Since his orthopedic surgeons do 
 
              not recommend further surgery, I would anticipate that he 
 
              has reached the maximum level of function.  The patient 
 
              could undoubtedly work at a job which does not involve 
 
              extensive standing, walking over a block or so on level 
 
              ground, or excessive use of the right foot as might be 
 
              experienced with heavy machinery.  Otherwise I would 
 
              consider his disability to be permanent.
 
         (ex. C)
 
         
 
             The Public Works Department examined the report of Dr. 
 
         Olnhausen and determined the following:.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              ...The purpose of the evaluation was to determine the 
 
              employee's ability to perform the duties of those positions 
 
              within the department for which he is currently qualified. 
 
              The evaluation report states that Mr..Franks would not be 
 
              able to perform such duties now or in the foreseeable 
 
              future.
 
              
 
              Since Mr. Franks is unable to perform the duties required by 
 
              his present position or the duties of any other position 
 
              with the City for which he is currently qualified, 
 
              termination based on disqualification for health is 
 
              recommended.
 
         
 
         (ex. D)
 
         
 
             Claimant was then terminated by letter dated August 27, 
 
         1987. The letter said claimant would be given the same preference 
 
         for any city job as any city employee and told him where the jobs 
 
         were published.  Claimant was offered vocational rehabilitation 
 
         assistance (def. ex. 15).
 
         
 
             Claimant was then given vocational rehabilitation assistance 
 
         by Medisult, Inc., operated by M. Cecilia Blaskovich, R.N., 
 
         C.I.R.S.  Blaskovich first saw claimant on September 25, 1988.  
 
         She saw him or talked to him a number of times, possibly 15 
 
         times.  Two of her nurses also saw claimant on occasion.  She 
 
         administered the Eureka Skills Tests and the general aptitude 
 
         test battery.  His organizational, planning, decision making and 
 
         supervisory skills were good as well as manual dexterity skills.  
 
         He demonstrated transferable carpentry skills, verbal 
 
         communication skills, leadership abilities, building maintenance 
 
         skills, large and small hand tool skill, and mechanical skills.  
 
         Blaskovich had claimant's hearing tested by an audiologist who 
 
         determined that hearing in an environment with background noise 
 
         might affect his communication significantly.  However, there was 
 
         no problem in a quiet situation or with an amplified telephone 
 
         receiver (cl. ex. E).
 
         
 
             Blaskovich ordered a functional capacities examination in 
 
         order to determine claimant's capabilities.  These tests were 
 
         performed by John M. Dobler, P.T.  It was reported that claimant 
 
         made a maximum effort and cooperated fully with these tests. 
 
         Claimant was capable of light to medium handling, simple or firm 
 
         grasping, fine manipulation or repetitive use of the hands.  He 
 
         could use his feet for repetitive movement to operate foot 
 
         control devices.  No pain was reported.  Claimant could 
 
         occasionally lift 21 pounds waist to shoulder, 32 pounds desk to 
 
         chair, and 21 pounds chair to floor.  He did report pain in the 
 
         forearm, right ankle, chest and back while lifting.  As to 
 
         balancing claimant did demonstrate a limp.  He could push 79 
 
         pounds and pull 56 pounds and could do this on occasion, but did 
 
         report it hurt his leg and stomach.  His ankle and knees hurt,on 
 
         squatting.  Walking with a limp and his leg turned out brought a 
 
         recommendation he should not walk more than two to three hours 
 
         per day.  On lifting and carrying 25 pounds in each hand he 
 
         complained of pain in his ankle and pulling across the shoulder 
 
         blades.  Kneeling and crawling hurt his knee and ankle.  Stairs 
 
         were also limited to occasional basis.  His pulse rates were high 
 
         and were an indication that he was out of condition.  He could 
 
         only tolerate sitting for 34 minutes; it was recommended he only 
 
         sit for 25-35 minutes duration and not more than three to fours 
 
         hours per day.  He phoned the therapist later and reported that 
 
         his leg was painful and swollen (def. ex. 7).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
             Blaskovich sent claimant job potentials which she collected 
 
         from five sources.  She sent lists to claimant on 25 different 
 
         dates beginning on September 28, 1987 and ending on June 6, 1988. 
 
         Each list contained anywhere from as low as 13 to as high as 57 
 
         potential jobs.  All in all these lists contained approximately 
 
         600 jobs for claimant to investigate.  She said claimant was to 
 
         pick and choose those that seemed pertinent to him.  It was her 
 
         opinion that claimant could work his way back into the job 
 
         market.
 
         
 
             Blaskovich conceded that a criminal conviction claimant 
 
         encountered as a youth would preclude him from getting certain 
 
         jobs.  She denied that she made the statement that his problem 
 
         was that he was telling his prospective employers that he was 
 
         fired from his last job for disciplinary reasons.  There was 
 
         evidence of conflict between employer and employee, but there is 
 
         no evidence claimant was discharged for disciplinary reasons.  
 
         Blaskovich said she believed claimant was capable.of full-time 
 
         work right now, but that he has not been motivated to have a job 
 
         up to this time (transcript page 106).
 
         
 
             Claimant testified that many job potentials were not 
 
         suitable for him, but he visited 180 employers from October 12, 
 
         1987 to March 25, 1988 and submitted a list of these employers 
 
         (cl. ex. B).  Claimant contended the city had numerous jobs that 
 
         he could do and singled out file clerk, dispatcher and building 
 
         inspection, but the city never offered these jobs to him.  
 
         Claimant contended that the city indicated it had no jobs that he 
 
         could do.  The letter of July 14, 1987, from public works to 
 
         employee relations concludes, "Since Mr. Franks is unable to 
 
         perform the duties required by his present position or the duties 
 
         of any other position with the City for which he is currently 
 
         qualified, termination based on disqualification for health is 
 
         recommended." (cl. ex. D).
 
         
 
             Claimant testified that during his disability he has been 
 
         very active in Veterans of Foreign Wars, Disabled American 
 
         Veterans, Parent Teacher Organizations and assisted the police 
 
         giving safety lectures to school children on a voluntary basis.
 
             
 
             Claimant verified that the mileage (3,089.2) shown on 
 
         claimant's exhibit A are the miles be travelled for medical 
 
         treatment and for which he was not reimbursed (cl. ex.A).
 
             
 
             Claimant related that after 90 days off work, he was forced 
 
         to pay his own life and health insurance premiums.(ex. 10, p. 3). 
 
         In addition, when he lost this job he also lost clothing 
 
         allowance, vacation time, and retirement plan benefits.
 
         
 
             Claimant said he tried to get jobs through Job Service, but 
 
         they have not been able to help him.  State Vocational 
 
         Rehabilitation was not able to help him.  Disabled American 
 
         Veterans was not able to help him.  He was turned down for social 
 
         security disability benefits, but was able to get some food 
 
         stamps. Claimant referred to the limitations and restrictions the 
 
         various doctors and the functional capacities examination put on 
 
         him.  His externally rotated right foot is clumsy.  It gets in 
 
         the way, bumps things, and gets hit a lot.  Claimant said as a 
 
         youth he was arrested and convicted for breaking and entering and 
 
         this makes if difficult to get a job dealing with cash or 
 
         security work.  He is not allowed to carry a firearm. claimant 
 
         said he took classes on how to dress, talk, and act in order to 
 
         get a job.  He said he answers questions truthfully on employment 
 
         applications concerning conviction for a felony and physical 
 
         limitations. Since the injury his.weight increased from 208 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         pounds to 230 pounds.  He said he should weigh between 195 and 
 
         210.  Claimant said he was earning about $6.50 when he got hurt.  
 
         He said the automotive training he took is now all outdated due 
 
         to the advances in cars. Furthermore, he could not do the bending 
 
         and body contortions involved.  Claimant said he did not go to 
 
         school because he could not forego the income from working in 
 
         order to go to school. Claimant took a document with him to 
 
         prospective employers stating that the Joint Training Partnership 
 
         Act would reimburse the employer 50 percent of claimant's wages 
 
         and he still could not get employment (cl. ex. F).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
             Elizabeth Ann Case testified that she is the risk manager 
 
         for the city.  Claimant's employment was terminated because they 
 
         held the job open for him for over a year until it became 
 
         apparent that he could no longer perform the duties of that job 
 
         again.  The job was held open from January 4, 1985 to August 27, 
 
         1987, a period of approximately two and one-half years (tr. p. 
 
         70).  She added that claimant never applied for any other lesser 
 
         jobs with the city.to her knowledge (tr. p. 72).  She did not 
 
         know what jobs had opened up since then that claimant could do.  
 
         She testified that claimant was not fired or discharged for 
 
         disciplinary reasons.  He was terminated strictly for medical 
 
         reasons (tr. p. 75).
 
         
 
             Dr. Fitzgibbons added a percentage of impairment for 
 
         claimant's back complaints on June 2, 1976,.by a letter which 
 
         read as follows:
 
         
 
              In terms of any additional assessment for the low back 
 
              strain that we have recently worked up, I would think that 
 
              an additional 2 percent of the body as a whole would be 
 
              justified for this back strain component.
 
              
 
              Again, my feeling, as noted on the I May 1987, was that this 
 
              was caused due to the excess stresses that the patient had 
 
              to put on his back, from his leg problem.
 
         
 
         (def. ex. 5, p. 1)
 
         
 
             Later, Dr. Fitzgibbons, who is a board certified orthopedic 
 
         surgeon, testified by deposition on September 17, 1987, that he 
 
         first saw claimant on the date of the injury, January 4, 1985, at 
 
         Mercy Hospital in Council Bluffs.  Claimant said he fell down 
 
         some stairs and injured his right leg.  The doctor found a closed 
 
         fracture of the right tibia and fibula.  It  was a comminuted 
 
         fracture with involvement of the right ankle joint.  Claimant was 
 
         placed in a long leg cast and was hospitalized for four days 
 
         until January 8, 1985.  Later he was placed in a short, weight 
 
         bearing cast.  During the recuperation process, claimant pointed 
 
         out to the doctor that his right foot rotated out externally.  
 
         The doctor noted and showed the patient that the fracture, as 
 
         set, was not anatomic, that is, it was not perfectly together, 
 
         which would result in a shorter right leg and some external 
 
         rotation.  The surgical alternatives to correct these situations 
 
         involved more risk than was feasible and claimant and the doctor 
 
         both opted not to perform any additional surgery. claimant also 
 
         noticed he has torsion of the tibia (bow legs) and this 
 
         accentuated the external rotation.
 
         
 
             The doctor said he first noted that claimant mentioned back 
 
         pain on May 1, 1987.  A negative CT scan and EMG ruled out disc 
 
         or degenerative back problems which made it more likely that the 
 
         back complaints were the result of two years of limping, excess 
 
         stresses, abnormal stresses that cause abnormal forces through 
 
         the back and caused the back problem (Ex. 13, p. 19).  Claimant 
 
         had a normal range of back motion, negative straight leg raising 
 
         test and no spasm.  His neurological examination was good.  
 
         However, the fact that the CT scan and EMG were negative doesn't 
 
         mean there isn't something wrong in terms of a back pain problem.  
 
         Dr. Fitzgibbons recorded that claimant's back strain, although 
 
         minimal, amounted to a 2 percent permanent impairment.  The 
 
         doctor reiterated that he assessed a 20 percent impairment of the 
 
         right lower extremity, 8 percent due to abnormal motion of the 
 
         ankle (ex. 13, deposition ex. 2) and an additional 12 percent for 
 
         malrotational deformity to his tibia as well as a secondary 
 
         compensatory rotation of his entire extremity because of 
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         tightness of his heel cord and ankle joint.  These soft tissue 
 
         impairments are significant and not dealt with in the AMA Guides.  
 
         Also there is the shortening of the extremity.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
             Dr. Fitzgibbons added that there is no objective way to 
 
         measure soft tissue impairment.  It is relative assessment based 
 
         on professional experience and judgment.  The rotation puts 
 
         excess stresses, different stress on the extremity and also the 
 
         back and that is how he justified the 2 percent percentage on the 
 
         back (ex. 13, pp. 25-28).  Claimant never completely,got his 
 
         motion back in his ankle joint and therefore, he never got back 
 
         to walking normally again (ex. 13, p. 29).  The doctor agreed 
 
         that his 2 percent permanent impairment to the body as a whole 
 
         for the back was based on the information that claimant reported 
 
         to him (ex. 13, pp. 32 & 33).
 
         
 
             Dr. Fitzgibbons said the fall down the stairs was the cause 
 
         of the fracture of the tibia and the strain symptoms in the back 
 
         were caused by the limping and the fact that claimant put excess 
 
         stresses on that leg which in turn put excess stresses and 
 
         abnormal stresses on the back.  Dr. Fitzgibbons acknowledged that 
 
         he also gave impairment ratings for social security hearings (ex. 
 
         13, pp. 33 & 34).
 
             
 
             Michael J. Morrison, M.D., an orthopedic surgeon, performed 
 
         an independent medical examination of claimant for defendants on 
 
         January 19, 1988.  He found claimant's right leg shorter than the 
 
         left leg by approximately 3/8 of an inch, varus deformity of the 
 
         right lower leg and subtalar joint motion restricted.  He gave 
 
         this conclusions:
 
         
 
              IMPRESSION:  1) Fracture, distal right tibia
 
                             (10 degrees varus) - healed.
 
                          
 
                          2) Restricted ankle and subtalar joint
 
                             motion secondary to the above.
 
                          
 
                          3) Leg length shortening, right, secondary
 
                             to the above.
 
                          
 
                          4) Chronic lumbar strain.
 
         
 
         (ex. 1, p. 2)
 
         
 
              He added:
 
         
 
              ...Any impairment to his lower back from this fall would 
 
              be based on subjective pain and would be expected to be 
 
              quite minimal.  In regards to his right lower leg 
 
              condition I believe that he has reached maximum medical 
 
              recovery and that his job description in the future should 
 
              restrict him from any prolonged ambulating, being on his 
 
              feet excessively and not be expected to do any climbing, 
 
              stooping or crawling.  His permanency from the fracture of 
 
              his right lower leg with some malunion, shortening of the 
 
              extremity and limitation of motion would be 12-15% loss of 
 
              physical function to his right lower leg.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         (ex. 1, p. 2)
 
         
 
             Dr. James Morrison testified by deposition on July 1, 1988. 
 
         His curriculum vitae shows that he is a board certified 
 
         orthopedic surgeon with staff appointments at several hospitals 
 
         and that he is an associate professor of orthopedics at Creighton 
 
         University. He examined information from Dr. Fitzgibbons, Dr. 
 
         Wirtz and an EMG/NCV and CAT scan reports.  He.examined claimant 
 
         previously on January 19, 1988 and made a report.  He determined 
 
         that claimant sustained a 12 to 15 percent loss of physical 
 
         function and impairment to his right lower leg (ex. 14, p. 5).  
 
         He said he uses a combination of the AMA Guides and the American 
 
         Academy of Orthopedic Surgeon's Manual.  He determined that 
 
         claimant's right leg was just under 3/8 of an inch shorter than 
 
         the left leg.  The fracture healed with some bowing.  The 
 
         combination of the way the fracture healed with bowing and the 
 
         shortening of the extremity caused him to favor this extremity 
 
         and to limp and bear the majority of his body weight on the 
 
         outside part of his foot and ankle causing a deformity of the 
 
         foot and ankle.
 
             
 
             He defined chronic lumbar strain.  Chronic implies over six 
 
         months.  Strain refers to injury of the soft tissues of the back, 
 
         such as muscles and ligaments.  Disc injury by comparison refers 
 
         to protruding or bulging vs. herniated disc.  He could detect no 
 
         nerve root irritation in the form of muscle weakness, atrophy, 
 
         reflex changes or straight leg raising findings.  The EMG/NCV 
 
         showed no nerve root irritation.  The CAT scan showed.no disc 
 
         herniation.  Dr. Morrison then added, "...then by a process of 
 
         elimination, we arrive at the fact that here must be some soft 
 
         tissue injury, either muscle or ligament, that is being 
 
         aggravated and causing him his pain."  (ex. 14, p. 9).  He 
 
         granted that these were subjective complaints of pain with no way 
 
         to document them. Losing weight would help his condition.  He 
 
         affirmed that a leg length discrepancy can contribute to some 
 
         lower back pain.  He related that, "We can assume that he had 
 
         some pelvic asymmetry if one leg is shorter than the other."  
 
         (ex. 14, p. 11).  This can be alleviated by a shoe lift and heel 
 
         and sole wedges.  The witness said he prefers to base ratings on 
 
         objective physical findings and diagnostic testing.  He explained 
 
         that his remark in his report that any impairment to his lower 
 
         back would be based on his pain and expected to be quite minimal 
 
         means a rating in the range of 2 percent of the body as a whole.  
 
         Therefore, he would not have any disagreement with Dr. 
 
         Fitzgibbons' 2 percent rating (ex. 14, p. 13).  The right leg was 
 
         shorter because he sustained an oblique fracture allowing one end 
 
         of the bone to slide up on the other bone and heal in that 
 
         position.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
             The claimant has the burden of proving by a.preponderance of 
 
         the evidence that the injury of January 4, 1985, is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
             However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id., at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
         Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
             An injury to a scheduled member may, because of after 
 
         effects (or compensatory change), result in permanent impairment 
 
         of the body as a whole.  Such impairment may in turn form the 
 
         basis for a rating of industrial disability.  Dailey v. Pooley 
 
         Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943).  Soukup v. Shores 
 
         Co., 222 Iowa 272, 268 N.W. 598 (1936).
 
             
 
             If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows:  "It is therefore 
 
         plain that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 
             
 
             Functional impairment is an.element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
             Dr. Fitzgibbons awarded 20 percent permanent impairment on 
 
         the right lower extremity and 2 percent on the back.  He said 
 
         both were caused by the injury.of January 4, 1985.  Dr. Wirtz 
 
         awarded 11 percent permanent impairment on the right lower 
 
         extremity.  He did not address the back, however, Dr. Fitzgibbons 
 
         said claimant first mentioned his back on May 7, 1987, and Dr. 
 
         Wirtz saw claimant on January 28, 1987.  He said claimant could 
 
         no longer do heavy work, climb on and off machinery or use 
 
         ladders.
 
         
 
             Dr. Olnhausen said claimant would not be able to perform 
 
         his job of heavy equipment operator now or in the future. 
 
         Furthermore, claimant was barred from extensive standing, 
 
         walking over a block on level ground, and excessive use of the 
 
         right foot as might be used in heavy machinery.  The disability 
 
         was permanent.  Based on these reports the city terminated 
 
         claimant and said he was unable to perform his present job or 
 
         any other position with the city for which he is currently 
 
         qualified (cl. ex. D).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
             Dr. Morrison awarded a 12 to 15 percent permanent impairment 
 
         of the right lower leg and added that 2 percent of the body as a 
 
         whole would be reasonable for his back complaints.  Dr. Morrison 
 
         did not question that claimant had back complaints or that they 
 
         were not from this injury.  On the contrary, he said we can 
 
         assume pelvic asymmetry if one leg is shorter than another.  All 
 
         of these doctors are employers' doctors.  None of them was 
 
         selected by claimant himself.
 
             
 
             Thus, claimant has established that he has sustained an 
 
         industrial disability to the body as a whole as well as an 
 
         extremely disabling injury to his lower right extremity.  The 
 
         right leg is shorter than the left leg.  The physicians testified 
 
         variously:  (1) one-half to one inch; (2) three eighths of an 
 
         inch; and (3) one-fourth inch.  Claimant walks and stands with 
 
         his right leg and foot externally rotated 10 degrees to the right 
 
         or to the outside which makes it clumsy to walk or use his foot.
 
             
 
             Claimant is foreclosed from performing not only his former 
 
         job of heavy equipment operator, but almost every other manual 
 
         labor or strenuous job as well because all jobs that require 
 
         continuous standing, walking, sitting, climbing, stooping, 
 
         crawling, kneeling, squatting and heavy lifting have been ruled 
 
         out by the physicians who have examined claimant.  Lifting is 
 
         restricted variously from 21 pounds to 32 pounds.  He can only 
 
         perform light to medium work in the future.  Claimant's 
 
         limitations cut a wide swath out of the available jobs in the 
 
         everyday competitive labor market.  Michael v. Harrison County, 
 
         Thirty-fourth Biennial Report of the Industrial Commissioner 218, 
 
         220 (Appeal Decision January 30, 1979); Rohrberg v. Griffin Pipe 
 
         Products Co., I Iowa Industrial Commissioner Report 282 (1984).
 
         
 
             Therefore, claimant is not only foreclosed from all of his 
 
         former jobs of a manual labor nature, but he is also precluded 
 
         from a large portion of the jobs in the competitive labor market 
 
         that are the most plentiful, easiest to get and often pay the 
 
         most.. He is relegated to minimum wage jobs or jobs that would 
 
         only pay slightly more than the minimum wage.  Furthermore, due 
 
         to the severe restrictions placed on him by all of the doctors 
 
         and the functional capacity evaluation, there are a number of 
 
         lower paying jobs that he cannot perform.
 
         
 
             At his age, in the mid-forties, claimant is at the peak of 
 
         his earning capacity.  This makes claimant's loss more severe 
 
         than it would be for a younger or older worker.  Becke v. 
 
         Turner-Busch, Inc., Thirty-fourth Biennial Report of the 
 
         Industrial Commissioner 34 (Appeal Decision 1979); Walton v. B & 
 
         H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); 
 
         McCoy v. Donaldson Company Inc., file nos. 752670 & 805300 
 
         (Appeal Decision April 28, 1989).
 
         
 
             There is some possibility claimant could be retrained in his 
 
         mid-forties in spite of his eleventh grade education and G.E.D. 
 
         certificate.  Retraining is one of the considerations involved in 
 
         determining industrial disability.  However, as claimant pointed 
 
         out how is he going to support his family and go to school at the 
 
         same time.  If he opts for retraining of an educational type or 
 
         vocational type it will be costly from the point of view of the 
 
         educational costs as well as the loss of income while learning. 
 
         Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner 
 
         Report 74, 78 (1984).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
             
 
             Claimant has a lot of obstacles in finding work.  He is over 
 
         weight and deconditioned.  He has a felony conviction, but it is 
 
         so long ago it should not be too detrimental.  He has led an 
 
         honorable life since then in the military and civilian life.  He 
 
         has an honorable discharge from the United States Marines and 
 
         commendations for civic service for his community.  He had bad 
 
         employment relations with the city and he should not be 
 
         surprised. if they are not able to wholeheartedly recommend him 
 
         to future employers.  The biggest obstacle to employment is the 
 
         seriousness of this injury and the resulting impairment and 
 
         disability from it.  He is not only disabled, but he looks clumsy 
 
         and disabled by the limp and outward turned foot.  His employment 
 
         opportunities are certainly limited as well as the wage that he 
 
         could command.
 
         
 
             As stated above, industrial disability has  been,defined as 
 
         reduction in earning capacity.  Olson, 255 Iowa 1112, 1120, 125 
 
         N.W.2d 251, 256 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 
 
         181, 192 (Iowa 1980).  One of the criteria to be used to 
 
         determine,industrial disability is "...inability, because of 
 
         injury, to engage in employment for which he is fitted." 
 
         McSpadden, 228 N.W.2d at 192 quoting Olson 225 Iowa at 1120, 125 
 
         N.W.2d at 257.  Change of job condition, such as being asked to 
 
         take a lower paying job, can justify an increase of industrial 
 
         disability without a change in physical condition.  Blacksmith v. 
 
         All-American, Inc., 290 N.W.2d 348, 350 (Iowa 1980).  The idea is 
 
         that it is not so much the injury, but rather the economic loss 
 
         of work that causes industrial disability.  The Iowa Supreme 
 
         Court has stated that an employer's refusal to provide any work 
 
         for an injured employee is a factor to disability irrespective 
 
         and independent of functional impairment.  McSpadden, 288 N.W.2d 
 
         181, 192 (Iowa 1980).
 
         
 
             In this particular case, employer involuntarily discharged 
 
         claimant because he was unable to perform the physical 
 
         requirements of his job of operating heavy equipment.  Refusal of 
 
         an employer to employ an injured employee is strong evidence of 
 
         lack of employability.  Professor Larson makes a point which 
 
         applies to this particular case, "At the outset, one might 
 
         suppose that the refusal of defendant-employer himself to employ 
 
         the claimant would be the strongest kind of evidence against that 
 
         employer."  Then he asserts what as a practical matter ought to 
 
         be obvious, "It is hardly necessary to labor the inconsistency of 
 
         permitting an employer to fire a man for physical defects caused 
 
         by his own employment conditions, and then to disclaim 
 
         compensation liability by presenting medical evidence that the 
 
         man is not really disabled after all."  2 Larson, Workmen's 
 
         Compensation Law, section 57.61(b) at pages 10-173 and 10-176; 
 
         Killinger v. Mark Wells Distributing Co., file nos. 775851 & 
 
         808991, filed October 27, 1989.
 
         
 
             Wherefore,.based upon the foregoing factors, all of the. 
 
         factors used to determine industrial disability, and employing 
 
         agency expertise (Iowa Administrative Procedure Act 17A.14(5)], 
 
         it is determined that claimant has sustained a 65 percent 
 
         industrial disability to the body as a whole.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
             
 
             No allowance can be made for the medical mileage submitted 
 
         by claimant in the amount of 3,089.2 miles because medical 
 
         benefits were not designated as an issue on the hearing 
 
         assignment order. Presswood v. Iowa Beef Processors, Inc., file 
 
         no. 735442 (Appeal Decision November 14, 1986).  However the 
 
         parties stipulated on the prehearing report that all medical 
 
         expenses have been or will be paid by defendants.  Therefore, 
 
         claimant should present his claim for medical mileage to 
 
         defendant insurance carrier directly.
 
         
 
             Under the odd-lot doctrine, which was formally adopted by 
 
         the Iowa Supreme Court in Guyton v. Irving Jensen Co., 373 N.W.2d 
 
         101 (Iowa 1985), a worker becomes an odd-lot employee when an 
 
         injury makes the worker incapable of obtaining employment in any 
 
         well-known branch of the labor market.  An odd-lot worker is thus 
 
         totally disabled if the only services the worker can perform are 
 
         so limited in quality, dependability, or quantity that a 
 
         reasonably stable market for them does not exist.  Id., citing 
 
         Lee v. Minneapolis Street Railway Company, 230 Minn. 315 320, 41 
 
         N.W.2d 433, 436 (1950).
 
         
 
             Claimant argues for application of the "odd-lot" doctrine. 
 
         This doctrine allows the claimant to establish a prima facie case 
 
         for unemployability and entitlement to permanent total disability 
 
         benefits from a factual showing of a reasonable, but unsuccessful 
 
         effort to find suitable work.  Such a showing automatically 
 
         shifts the burden of going forward to the defendants on the issue 
 
         of availability of suitable work.  If defendants fail to go 
 
         forward, claimant is therefore automatically entitled as a matter 
 
         of law to an award of permanent total disability.  See Guyton, 
 
         373 N.W.2d 101, 105 (Iowa 1985).  However, the industrial 
 
         commissioner has directed that this doctrine cannot be applied by 
 
         a deputy commissioner without a showing of a reasonable effort to 
 
         secure suitable employment.  Collins v. Friendship Village, Inc., 
 
         case number 679258 (Appeal Decision filed October 31, 1988; Pyle 
 
         v. Carstensen Freight Lines, Inc., case number 753661 (Appeal 
 
         Decision filed July 27, 1987).
 
         
 
             Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he is an odd-lot employee. 
 
         Claimant is intelligent and industrious.  His GATB scores were 
 
         good.  In the past he completed a basic automotive training 
 
         course and received a certificate.  He completed schools in the 
 
         military service.  Recently he has performed extensive volunteer 
 
         organizational work for several civic organizations and local 
 
         schools.  He has demonstrated that he does have the skills that 
 
         Blaskovich pointed out.  Even though claimant may have called 
 
         upon a large number of employers he did not demonstrate why he 
 
         was not hired by any of these employers.  He has ability.  He is 
 
         personable.  He is not one of the hard core unemployed.  Umphress 
 
         v. Armstrong Rubber Company, file no. 723184 (Appeal Decision 
 
         August 27, 1987).  Blaskovich is also probably correct that there 
 
         are jobs claimant can do if and when he wants to find them.  She 
 
         interviewed claimant, tested him, talked to him several times and 
 
         her opinion is respected.  Testimony of vocational experts is 
 
         useful in determining industrial disability.  Webb v. Lovejoy 
 
         Construction Co., II Iowa Industrial Commissioner Report 430 
 
         (Appeal Decision October 20, 1981).  There were a number of 
 
         potential jobs on the lists submitted by Blaskovich to claimant 
 
         that claimant could perform.  With retraining there are even a 
 
         larger number of jobs claimant could decide to pursue.  
 
         Blaskovich may be correct in her statement that claimant was not 
 
         motivated to find work at this time while his workers' 
 
         compensation claim is pending.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
             In summary, claimant did not sustain the burden of proof by 
 
         a preponderance of the evidence that he was incapable of 
 
         obtaining employment in any well-known branch of the labor market 
 
         or that his abilities are so limited in quality, dependability or 
 
         quantity that a reasonably stable market for them does not exist.  
 
         Assuming for purposes of argument that claimant did prove a prima 
 
         facie case of odd-lot status, defendants have gone forward and 
 
         shown the availability of suitable work in claimant's employment 
 
         market as well as claimant's ability to perform some jobs.
 
         
 
                                 FINDINGS OF FACT
 
         
 
             Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 
             
 
             That the various orthopedic surgeons, three of them, all of 
 
         which were selected by defendants determined that claimant 
 
         sustained a permanent physical and functional impairment of his 
 
         right lower extremity of variously between 11 and 20 percent.
 
             
 
             That his right leg is shorter than his left leg due to this 
 
         injury.
 
             
 
             That claimant's right foot and leg rotate externally when he 
 
         walks making walking clumsy, awkward and difficult.
 
         
 
             That claimant walks with a noticeable limp even though his 
 
         shoe has been orthopedically corrected.
 
             
 
             That claimant has sustained soft tissue injury to the 
 
         muscles and ligaments of his back.
 
             
 
             That Dr. Fitzgibbons and Dr. Morrison determined that 
 
         claimant sustained a 2 percent physical and functional impairment 
 
         to the body as a whole to his back.
 
             
 
             That claimant is severely limited in his employment 
 
         opportunities.
 
             
 
             That claimant is unable to do active manual labor type of 
 
         employments or generally strenuous work in the future.
 
             
 
             That claimant's ability to walk, sit, stand, climb, crawl, 
 
         stoop, kneel, lift, use his right leg or foot and balance his 
 
         body is limited as verified by the various doctors and functional 
 
         capacities evaluation.
 
         
 
             That claimant is probably limited primarily to minimum wage 
 
         types of jobs and he is deconditioned for many of them due to 
 
         this injury.
 
             
 
             That claimant is capable of either educational or vocational 
 
         retraining, but either one is a considerable amount of financial 
 
         expense and will be difficult at claimant's age.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
             
 
             That claimant was age 41 at the time of the injury and age 
 
         45 at the time of the hearing, quit school in the eleventh grade, 
 
         and later obtained a G.E.D..
 
         
 
              Claimant sustained a severe injury which required a long 
 
         period of healing.
 
         
 
             That claimant probably needs some kind of work hardening 
 
         program before it is possible for him to engage in almost any 
 
         kind of employment successfully.
 
             
 
             That Blaskovich demonstrated several jobs that claimant 
 
         probably could do if he tried hard enough and that she 
 
         demonstrated that claimant has a number of very desirable 
 
         abilities, skills and transferable skills.
 
             
 
             That claimant demonstrated that he is industrious and has a 
 
         great deal of ability by his performance of many volunteer jobs 
 
         with various organizations.
 
             
 
                                CONCLUSIONS OF LAW
 
         
 
             Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
             
 
             That claimant sustained the burden of proof that the injury 
 
         of January 4, 1985 was the cause of permanent disability.
 
             
 
             That claimant sustained an industrial disability to the body 
 
         as a whole because the leg injury was the cause of his permanent 
 
         back injury.
 
             
 
             That claimant is entitled to 325 weeks of permanent partial 
 
         disability benefits.
 
             
 
             That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that he is an odd-lot employee.
 
         
 
                                      ORDER
 
         
 
             THEREFORE, IT IS ORDERED;
 
             
 
             That defendants pay to claimant three hundred twenty-five 
 
         (325) weeks of permanent partial disability benefits at the rate 
 
         of One Hundred Ninety-five and 58/100 Dollars ($195.58) per week 
 
         in the total amount of Sixty-three Thousand Five Hundred 
 
         Sixty-three and 50/100 Dollars ($63,563.50).
 
             
 
             That all accrued benefits are to be paid in a lump sum.
 
             
 
             That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
             
 
             That defendants are entitled to a credit for fifty-two point 
 
         eight (52.8) weeks of workers' compensation permanent partial 
 
         disability benefits paid prior to hearing at the rate of one 
 
         Hundred Ninety-five and 58/100 Dollars ($195.58) per week in the 
 
         total amount of Ten Thousand Three Hundred Twenty-six and 62/100 
 
         Dollars ($10,326.62).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
             That the costs of this action are charged to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
             
 
             That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         343-3.1.
 
             
 
             
 
             Signed and filed this 18th day of December, 1989.
 
         
 
         
 
         
 
         
 
         
 
                                          WALTER R. McMANUS, JR..
 
                                          DEPUTY INDUSTRIAL COMMISSIONER.
 
         
 
         Copies To:
 
         
 
         Mr. Michael Murphy
 
         Attorney at Law
 
         100-101 Park Bldg.,
 
         Council Bluffs, IA.  51501
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         974-73rd St. STE 16
 
         Des Moines, IA  50312
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
                                       
 
 
 
 
 
 
 
 
 
 
 
                                       51401; 51402.40; 51803; 51803.10;
 
                                       51807; 54100
 
                                       Filed December 18, 1989
 
                                       WALTER R. McMANUS, JR.
 
         
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         TERRY FRANKS,
 
         
 
              Claimant,
 
         
 
         vs.
 
                                                  File No. 784334
 
         CITY OF COUNCIL BLUFFS,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                  D E C I S I 0 N
 
         and
 
         
 
         ARGONAUT INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         51401; 51402.40; 51803; 51803.10; 51807; 54100
 
         
 
             Claimant awarded 65 percent industrial disability.  Claimant 
 
         sustained a comminuted fracture of the tibia, fibula that went 
 
         into the ankle.  There was malunion upon healing, right leg ended 
 
         up shorter than left leg, right foot and leg rotated externally 
 
         making it clumsy and awkward to walk, and claimant walked with a 
 
         limp in spite of built-up shoes.  Impairment ratings ran from 11 
 
         percent to 20 percent on the right lower extremity and 2 percent 
 
         on the back which was affected by the change of gait.  All four 
 
         physicians were employer physicians.  Claimant is foreclosed from 
 
         former job of heavy equipment operator as well as practically all 
 
         strenuous or manual labor jobs.  He was limited to minimum wage 
 
         type jobs and could not perform many of them.  City employer 
 
         terminated him because he could not perform his job and they said 
 
         they did not have anything else he could do.  Claimant capable of 
 
         educational or vocational training, but it would be expensive and 
 
         difficult for him.  Claimant performed extensive civic service 
 
         for the community during his period of disability.  He was not 
 
         odd-lot even though he produced a list of 180 employers he had 
 
         contacted without success of obtaining a job.  The opinion of the 
 
         vocational rehabilitation specialist on claimant's motivation to 
 
         find work was accepted as instructive and valid.  He was 
 
         intelligent and industrious.  He was not hard-core unemployed.  
 
         Claimant was deconditioned and needed work hardening.
 
         
 
              This case does not expound any new precedents, but makes an 
 
         interesting application of a number of existing precedents.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
                                        
 
         CHERYL A. THOMPSON.,
 
         
 
              Claimant,
 
         
 
          VS.
 
         
 
          MARSHALL & SWIFT, INC.,        File No. 784394
 
         
 
              Employer,                  A P P E A L
 
         
 
          and
 
                                         D E C I S I 0 N
 
         U. S. INSURANCE GROUP,
 
         
 
              Insurance Carrier,
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
                                        
 
                              STATEMENT OF THE CASE
 
                                        
 
              Defendant employer appeals and the Second Injury Fund of 
 
         Iowa (hereinafter the Fund) cross-appeals from an arbitration 
 
         decision awarding healing period benefits, medical expenses, and 
 
         permanent partial disability benefits which were to be paid by 
 
         both defendant employer and the Fund.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing; joint exhibits 1 through 23, 27 and 28; 
 
         claimant's exhibits 24 through 26 and 29 through 31; and 
 
         defendants' exhibits A through D. All parties filed briefs on 
 
         appeal.
 
         
 
                                      ISSUES
 
         
 
              The issues on appeal are the nature and extent of claimant's 
 
         alleged disability, when claimant's healing period ended, and the 
 
         liability, if any, of the Fund.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision dated April 11, 1988 adequately and 
 
         accurately reflects the pertinent evidence and it will not be 
 
         reiterated herein.
 
         
 
         
 
         
 
         THOMPSON V. MARSHALL & SWIFT, INC.
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                                  APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                     ANALYSIS
 
                                        
 
              The analysis of the evidence in conjunction with the law in 
 
         the arbitration decision is adopted.  The following additional 
 
         comments are also appropriate.
 
         
 
              While the deputy did not specifically so state, he was 
 
         following agency precedent when he determined that there was 
 
         liability of the Fund.  For the purpose of imposing Fund 
 
         liability, an injury which affects a scheduled member is all that 
 
         is necessary.  See Cook v. Iowa Meat Processing Company, Appeal 
 
         Decision, May 12, 1987.  As found by the deputy and adopted 
 
         herein the work injury on January 8, 1985 affected claimant's 
 
         body as a whole; however, that injury also resulted in loss of 
 
         use of claimant's right arm.  Iowa Code section 85.64 requires 
 
         only that claimant lose the use of a listed member, not that the 
 
         disability be confined to that member.
 
         
 
              For purposes of determining the amount of the liability of 
 
         the Fund, the extent of the disability from the work-related 
 
         injury must be considered.  The employer is liable for the 
 
         disability resulting from the work-related injury.  In this case, 
 
         the disability resulting from the work-related injury was an 
 
         industrial disability of 45 percent of the body as a whole.  The 
 
         Fund's liability is the cumulative industrial disability, less 
 
         the total disability of the two injuries.  Second Injury Fund v. 
 
         Neelans, 436 N.W.2d 355 (Iowa 1989).  In this case the Fund's 
 
         liability is 50 percent (250 weeks) less the total of 45 percent 
 
         industrial disability from the work injury (225 weeks) and ten 
 
         percent of the leg (22 weeks) or three weeks, i.e., 250 - (225 + 
 
         22) = 3.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant was born February 28, 1964 and was twenty years 
 
         old at the time of the work injury.
 
         
 
              2. Claimant graduated from high school and got above average 
 
         grades in high school.
 
         
 
              3. Claimant has no training or formal education beyond high 
 
         school.
 
         
 
              4. Claimant's employment history is manual labor which has 
 
         not been heavy labor.
 
         
 
              5. Claimant was injured on January 8, 1985 when her right 
 
         hand and forearm was pulled into an ironer machine.  The initial 
 
         trauma did not include the shoulder.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         THOMPSON V. MARSHALL & SWIFT, INC.
 
         Page 3
 
         
 
         
 
              6. During the weeks and months that followed, claimant 
 
         developed a reflex sympathetic dystrophy of the right upper 
 
         extremity which, in turn, produced impairment in claimant's right 
 
         shoulder.
 
         
 
              7. Reflex sympathetic dystrophy is a disorder of the 
 
         autonomic nervous system and, as indicated by Dr. DeBartolo, is 
 
         not a problem that is limited to the right arm, but extends into 
 
         the shoulder.
 
         
 
              8. Following the injury, claimant was medically incapable of 
 
         performing work in employment substantially similar to the work 
 
         she performed at the time of injury from January 8, 1985 until 
 
         August 27, 1986, when her recovery and treatment had progressed 
 
         to the point it was medically indicated that no additional 
 
         treatment options remained and that further significant 
 
         improvement from the injury was not anticipated.
 
         
 
              9. Claimant was earning $4.00 per hour at the time of 
 
         injury, but now earns $4.20 per hour.
 
         
 
              10.At the time of the arbitration hearing claimant had 
 
         returned to work and through the cooperation of the defendant 
 
         employer was working.  However, claimant had been able to 
 
         generally work for only four hours per day.
 
         
 
              11.Claimant has a 30 percent permanent functional impairment 
 
         of the right upper extremity, including the shoulder, which is 
 
         equivalent to a 23 percent permanent partial impairment of the 
 
         whole person.
 
         
 
              12.Claimant had a preexisting 10 percent permanent 
 
         functional impairment of her left leg prior to the time she 
 
         commenced employment with defendant employer.
 
         
 
              13.Claimant has a 45 percent loss of earning capacity which 
 
         was the result of the injuries she sustained on January 8, 1985.
 
         
 
              14.Claimant currently has a 50 percent loss of earning 
 
         capacity which was the result of the injuries she sustained on 
 
         January 8, 1985 and her preexisting impairment to her left leg.
 
         
 
              15.All the medical care that claimant has received was 
 
         reasonable treatment for the injury and the expenses charged for 
 
         that treatment were fair and reasonable, including in particular 
 
         the $712.70 charged by the Mayo Clinic as shown in exhibit 24.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         THOMPSON V. MARSHALL & SWIFT, INC.
 
         Page 4
 
         
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has proved that she had a preexisting disability of 
 
         10 percent of the left leg.
 
         
 
              Claimant has proved that the permanent partial disability 
 
         from the  work injury she sustained on January  8, 1985 was an 
 
         injury to the body as a whole and it affected her right arm.
 
          
 
              Claimant has proved that the work injury sustained on 
 
         January 8, 1985 was a cause of an industrial disability of 45 
 
         percent.
 
          
 
              Claimant has proved a current industrial disability of 50 
 
         percent as a result of the work injury and the preexisting 
 
         disability to her left leg.
 
         
 
              Claimant has proved that her healing period commenced on 
 
         January 8, 1985 and ended August 27, 1986.
 
          
 
              Claimant has proved entitlement to second injury fund 
 
         benefits of three weeks.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That the employer and insurance carrier pay claimant eighty 
 
         five and two-sevenths (85 2/7) weeks of compensation for healing 
 
         period at the stipulated rate of one hundred twelve and 02/100 
 
         dollars ($112.02) per week commencing January 8, 1985.
 
         
 
              That the employer and insurance carrier pay claimant two 
 
         hundred twenty-five (225) weeks of compensation for payment of 
 
         permanent partial disability at the stipulated rate of one 
 
         hundred twelve and 02/100 dollars ($112.02) per week payable 
 
         commencing August 28, 1986.
 
         
 
              That the employer and insurance carrier receive full credit 
 
         for benefits they have previously paid.
 
         
 
              That all past due accrued amounts paid to claimant by the 
 
         employer and insurance carrier be in a lump sum together with 
 
         interest in accordance with section 85.30 of the Iowa Code.
 
         
 
              That the employer and insurance carrier pay claimant's 
 
         medical expense with the Mayo Clinic in the amount of seven 
 
         hundred twelve and 70/100 dollars ($712.70).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
                                        
 
                                        
 
                                        
 
         THOMPSON V. MARSHALL & SWIFT, INC.
 
         Page 5
 
         
 
         
 
              That the Second Injury Fund of Iowa pay claimant three (3) 
 
         weeks of compensation for permanent partial disability at the 
 
         stipulated rate of one hundred twelve and 02/100 dollars 
 
         ($112.02) per week commencing at the time the employer completes 
 
         making the permanent partial disability compensation payment 
 
         which is computed to be December 20, 1990 (225 weeks after August 
 
         28, 1986).
 
         
 
              That the employer and insurance carrier pay the costs of 
 
         this action including costs of transcription of the arbitration 
 
         hearing pursuant to Division of Industrial Services Rule 
 
         343-4.33.
 
         
 
              That the employer and insurance carrier file claim activity 
 
         reports as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 28th day of August, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                         DAVID E. LINQUIST
 
                                         INDUSTRIAL COMMISSIONER
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney at Law
 
         214 North Adams
 
         P.O. Box 679
 
         Mason City, Iowa 50401
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State office Building
 
         Des Moines, Iowa 50319
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1802,1803,1803.1,3202
 
                                         Filed August 28, 1989
 
                                         DAVID E. LINQUIST
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHERYL A. THOMPSON,
 
          
 
               Claimant,
 
          
 
          VS.
 
          
 
          MARSHALL & SWIFT, INC.,        File No. 784394
 
          
 
               Employer,                 A P P E A L
 
          
 
                                         D E C I S I 0 N
 
          and
 
          
 
          U. S. INSURANCE GROUP,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
                                        
 
         1802
 
         
 
              Claimant's healing period extended while diagnostic tests 
 
         were being conducted to determine whether or not surgery should 
 
         be performed.  The healing period ended when the physicians 
 
         determined that the surgery should not be performed, no further 
 
         aggressive treatment was recommended, and an impairment rating 
 
         was assigned.
 
         
 
         1803 -  1803.1
 
         
 
              Claimant's injury to her right hand and arm extended to the 
 
         shoulder and the body of the whole.  Claimant's condition 
 
         included a reflex sympathetic dystrophy.  Disability was 
 
         evaluated industrially.
 
         
 
         3202
 
         
 
              Claimant's prior injury to her left leg was found to be 
 
         permanent and a ten percent disability.  Work related injury was 
 
         evaluated industrially and found to be 45 percent.  Claimant's 
 
         cumulative industrial disability was 50 percent.  Second Injury 
 
         Fund is liable for the difference between the cumulative 
 
         industrial disability (50 percent) and the total of the work 
 
         injury (45 percent industrial) and the disability of the leg (ten 
 
         percent).  Second Injury Fund liability was 3 weeks. i.e. 250 - 
 
         (225 + 22) = 3.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHERYL A. THOMPSON,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         MARSHALL & SWIFT, INC.,
 
                                                     File No. 784394
 
              Employer,
 
                                                  A R B I T R A T I 0 N
 
         and
 
                                                     D E C I S I 0 N
 
         U. S. INSURANCE GROUP,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Cheryl A. 
 
         Thompson against Marshall & Swift, Inc., her employer, the U. S. 
 
         Insurance Group, the employer's insurance carrier, and the Second 
 
         Injury Fund of Iowa.  The case was heard and fully submitted on 
 
         September 18, 1987 at Des Moines, Iowa.  The record in this 
 
         proceeding consists of testimony from Cheryl A. Thompson, Carol 
 
         Keel, Robert Thompson, Cecilia Blaskovich, Steven Karabatsos and 
 
         Linda Rezab.  The record also contains joint exhibits 1 through 
 
         23, 27 and 28, claimant's exhibits 24, 25, 26, 29, 30 and 31 and 
 
         defendants' exhibits A, B, C and D.
 
         
 
                                      ISSUES
 
         
 
              The issues presented by the parties at the time of hearing 
 
         are determination of claimant's entitlement to compensation for 
 
         healing period, determination of claimant's entitlement to 
 
         compensation for permanent partial disability, section 85.27 
 
         benefits, interest and costs.  The major issue in the case is 
 
         whether the injury that claimant sustained on January 8, 1985 is 
 
         a scheduled member injury to the arm or an injury to the body as 
 
         a whole.  A further issue for determination is the liability, if 
 
         any, of the Second Injury Fund of Iowa.
 
              It was stipulated that claimant sustained an injury on 
 
         January 8, 1985 which arose out of and in the course of her 
 
         employment with the employer and that the injury is a cause of 
 
         temporary disability during a period of recovery and of permanent 
 
         disability.  It was stipulated that, in the event of an award, 
 
         the rate of compensation is $112.02 per week.  With regard to the 
 
         disputed medical expenses, which are $712.70 from the Mayo 
 
         Clinic, it was stipulated that the provider of the services would 
 
         testify that the treatment was reasonable and necessary treatment 
 

 
         for the work injury and that the fees charged were reasonable.  
 
         Claimant also seeks authorization for pain clinic services.  It 
 
         was further stipulated that claimant has been paid healing period 
 
         compensation from January 9, 1985 through January 7, 1986 and 75 
 
         weeks of compensation for permanent partial disability commencing 
 
         January 8, 1986 at the correct rate.
 
         
 
                             SUMMARY OF EVIDENCE
 
         
 
              The following is a summary of evidence presented in this 
 
         case.  Only the evidence most pertinent to this decision is 
 
         discussed, but all of the evidence received at the hearing was 
 
         considered in arriving at this decision.  Conclusions about what 
 
         the evidence showed are inevitable with any summarization.  The 
 
         conclusions in the following summary should be considered to be 
 
         preliminary findings of fact.
 
         
 
              Cheryl A. Thompson is a 23-year-old married woman who 
 
         graduated from high school in 1982, but has no further formal 
 
         education.  She testified that, while in high school, she 
 
         obtained A's and BOs.  While in high school, claimant worked as a 
 
         waitress.  After graduation, she worked for a film developing 
 
         company.  She commenced employment with Marshall & Swift, Inc. in 
 
         May, 1983.  Claimant testified that she had been earning $4.45 
 
         per hour in the photography business, but took a cut in pay to 
 
         $4.00 per hour in order to work days at Marshall & Swift.
 
         
 
              In 1980, claimant injured her left hand and wrist while 
 
         working as a waitress.  She was taken off work, treated, 
 
         recovered and returned to work.  No permanent impairment was 
 
         anticipated (exhibit 1, pages 1-3).  Claimant testified that she 
 
         currently has no problems with her left hand and wrist.
 
         
 
              Claimant testified that she fractured and dislocated her 
 
         left knee while in high school gym class.  She saw Wayne E. 
 
         Janda, M.D., on April 30, 1981 and was treated with a cast and a 
 
         knee immobilizer.  Claimant continued to have difficulty with the 
 
         knee (exhibit 1, pages 3-5).  On September 16, 1982, Dr. Janda 
 
         performed surgery on the knee consisting of arthrotomy of the 
 
         left knee, shaving and drilling of the patella, lateral 
 
         retinacular release and medial quadriceps plasty (exhibit 1, page 
 
         6).  After an extended period of recovery, claimant was released 
 
         to return to work on January 19, 1983.  Her final follow-up visit 
 
         was on February 16, 1983 when it was noted that her knee pain had 
 
         disappeared, knee motion was good and the kneecap was stable, but 
 
         claimant continued to exhibit below normal extension of the knee 
 
         due to weak quadriceps (exhibit 1, page 8).
 
         
 
              Claimant testified that her left knee is now weaker than the 
 
         right and that she must watch it closely when turning sharply, 
 
         but that it is otherwise pretty much normal.  She stated that the 
 
         knee did not prevent her from working at Marshall & Swift.  She 
 
         testified that the injury she sustained to the knee in November, 
 
         1985, did not produce any permanent change in the condition of 
 
         the knee.
 
         
 
              Claimant denied having any prior injuries to her right arm 
 
         or shoulder, except for an occasion in 1982 when she bumped her 
 
         shoulder on a door knob.  Claimant stated that it resolved 
 
         completely in approximately three days.
 
         
 
              Claimant testified that she was hired at Marshall & Swift to 
 
         work on the eight roll flat iron, but that at times she also 
 

 
         
 
         
 
         
 
         THOMPSON V. MARSHALL & SWIFT, INC.
 
         Page   3
 
         
 
         
 
         worked in other departments.  She stated that she worked 40 hours 
 
         per week and liked her job.
 
         
 
              During the morning of January 8, 1985, claimant was feeding 
 
         towels into the ironer when the machine pulled her arm into the 
 
         beater bar mechanism.  Her arm was caught between the moving 
 
         beater bar and the stationary bar, but her hand was not pulled 
 
         into the roller mechanism.  Claimant shut off the machine, 
 
         released herself from it, reported the injury and was taken to 
 
         North Iowa Medical Center where she was examined and treated by 
 
         E. D. Kennedy, M.D. (exhibit 2).
 
         
 
              Claimant testified that she remained off work until January 
 
         10 when she was called in.  She stated that she tried to work, 
 
         but began developing sharp, shooting pains in her shoulder and 
 
         clawing of the fingers of her hand.  She was then permitted to 
 
         see Dr. Janda.
 
         
 
              Claimant went to the St. Joseph Mercy Hospital Emergency 
 
         Department where Dr. Janda examined her and diagnosed an anterior 
 
         compartment syndrome and carpal tunnel syndrome.  Emergency 
 
         decompression surgery by fasciotomy of the anterior compartment 
 
         and carpal tunnel release was performed (exhibit 1, pages 8 and 
 
         9; exhibit 3, page 1).  Claimant was discharged from the hospital 
 
         on January 17, 1985 (exhibit 3, page 3).
 
         
 
              During the following weeks, claimant developed increasing 
 
         pain and swelling in the hand and arm which was initially thought 
 
         to be an infection.  Elbow and shoulder motion was also painful 
 
         and guarded.  Claimant was again hospitalized from February 6 
 
         until February 14, 1985 where she was diagnosed as having a 
 
         reflex sympathetic dystrophy secondary to the work injury 
 
         (exhibit 1, page 10; exhibit 5).
 
         
 
              A period of recuperation involving treatment with medication 
 
         and therapy followed.  Dr. Janda noted satisfactory progress 
 
         until April 12, 1985, at which time claimant had discontinued her 
 
         medications due to pregnancy.  At that time, Dr. Janda noted that 
 
         she had limitation of right wrist and shoulder motion.  He 
 
         recommended that she enter physical therapy and that she contact 
 
         the employer about light-duty or part-time work (exhibit 1, page 
 
         12).  At her next visit on April 24, 1985, claimant's condition 
 
         had deteriorated (exhibit 1, page 12).  Over the next few weeks, 
 
         she alternated between progress and deterioration.
 
         
 
              Sant M. S. Hayreh, M.D., examined claimant on June 7, 1985. 
 
          He indicated that claimant exhibited restricted motion of the 
 
         right wrist, but that the right shoulder and elbow movements were 
 
         full, free and painless.  Dr. Hayreh noted sensory and strength 
 
         abnormalities in claimant's right wrist and hand.  An EMG 
 
         indicated that claimant's carpal tunnel syndrome had progressed 
 
         (exhibit 1, page 14; exhibit 6).
 
         
 
              Claimant continued to be symptomatic and to treat with Dr. 
 
         Janda.  On July 22, 1985, active range of motion of her right 
 
         shoulder was reported to be abduction 90 degrees, flexion 90 
 
         degrees, extension 35 degrees, internal rotation 65 degrees and 
 
         external rotation 60 degrees (exhibit 1, page 16).
 
         
 

 
         
 
         
 
         
 
         THOMPSON V. MARSHALL & SWIFT, INC.
 
         Page   4
 
         
 
         
 
              Biofeedback therapy was attempted without success.  Claimant 
 
         participated in physical therapy where she demonstrated 110 
 
         degrees of shoulder abduction and generally increased mobility 
 
         (exhibit 1, page 17).
 
         
 
              A referral was made for an assessment to be performed by 
 
         James H. Dobyns, M.D., a hand surgeon at the Mayo Clinic.  The 
 
         first visit was on August 29, 1985, the second on September 19, 
 
         1985.  Dr. Dobyns diagnosed pain dysfunction syndrome, right 
 
         upper limb with multiple factors including (1) autonomic 
 
         dysfunction, (2) musculoskeletal triggers including the flexor 
 
         muscles and tendons of the volar forearm and the volar wrist 
 
         capsule, (3) multiple peripheral nerve neuralgia including both 
 
         the median and ulnar nerves, (4) persistent swelling, some 
 
         generalized but also some localized and even compartmental 
 
         swelling in the thumb intrinsic compartment, and (5) severe 
 
         muscle alienation, co-contraction and inhibition.  At the first 
 
         visit, it was recommended that claimant be referred to the hand 
 
         therapy department for a review and treatment program and also to 
 
         the pain clinic for consideration of sympathetic blocks and other 
 
         treatments as they may indicate.
 
         
 
              The pain clinic recommended a series of stellate blocks 
 
         coordinated with physical medicine treatments.  It was noted that 
 
         claimant's shoulder dysfunction had increased considerably 
 
         between the two visits.  Dr. Dobyns detected a considerable 
 
         degree of conversion, hostility and panic in claimant's 
 
         reactions.  He recommended that her workers' compensation claim 
 
         be settled and that she be placed in the pain management center 
 
         program (exhibit 7).
 
         
 
              Claimant continued in Dr. Janda's care through the end of 
 
         1985.  Her treatment consisted primarily of therapy and 
 
         medication.  Claimant reinjured and severely sprained her left 
 
         knee on November 4, 1985.  A week later, the knee appeared to 
 
         have improved considerably and no further indication appears in 
 
         the record of continuing complaints from or treatment for that 
 
         incident (exhibit 1, pages 19-21).
 
         
 
              Claimant made a brief, unsuccessful attempt to return to 
 
         work on November 21, 1985.  She worked approximately four hours. 
 
          The following day, she returned to Dr. Janda in acute distress 
 
         (exhibit 1, page 22).
 
         
 
              A psychological evaluation of December 5, 1985 found that 
 
         claimant was becoming significantly depressed, but no particular 
 
         course of treatment was recommended (exhibit 9).
 
         
 
              Dr. Janda left the Mason City area and, in January, 1986, 
 
         claimant's care was transferred to Thomas F. DeBartolo, M.D., who 
 
         examined her and diagnosed her condition as reflex sympathetic 
 
         dystrophy.  His initial notes indicate that claimant's shoulder 
 
         abducted only 60 degrees.  Her internal and external rotation 
 
         appeared to be the same as what had been observed at the Mayo 
 
         Clinic on September 19, 1985 (exhibit 10, page 2).
 
         
 
              Stellate ganglion blocks were administered which provided 
 
         temporary relief.  On February 7, 1986, Dr. DeBartolo recommended 
 
         that claimant be hospitalized for a continuous stellate ganglion 
 

 
         
 
         
 
         
 
         THOMPSON V. MARSHALL & SWIFT, INC.
 
         Page   5
 
         
 
         
 
         block.  The workers' compensation rehabilitation specialist 
 
         objected, however, and required a second opinion (exhibit 10, 
 
         pages 4 and 5).  Claimant returned to the Mayo Clinic on March 3, 
 
         1986 and was seen by Dr. Dobyns.  The suggested procedure was 
 
         confirmed.  It was also indicated by one of the Mayo Clinic 
 
         physicians that claimant's shoulder pain was myofascial in nature 
 
         and should resolve with proper physical therapy (exhibit 11).  
 
         The continuous blocks were administered, but with only temporary 
 
         success (exhibit 23, page 72).
 
         
 
              Over the spring and summer of 1986, claimant's care was 
 
         transferred to the Mayo Clinic and additional blocks and trigger 
 
         point injections were administered (exhibits 12, 13 and 15).  In 
 
         a report dated August 27, 1986, Dr. Dobyns concluded that a 
 
         sympathectomy was not indicated, that claimant's status had been 
 
         unchanged for the past year and that maximum healing had probably 
 
         occurred.  He rated claimant as having a 30% permanent partial 
 
         impairment of the right upper limb, including the shoulder and 
 
         shoulder girdle, which was equivalent to a 23% impairment of the 
 
         whole body.  He indicated that any job she might consider should 
 
         be a one-handed job.  His final diagnosis was that she had pain 
 
         dysfunction syndrome of the right upper limb with multiple 
 
         factors including musculoskeletal trigger areas, peripheral nerve 
 
         trigger areas, chronic recurrent swelling and chronic pain 
 
         behavior including motor co-contraction and inhibition, motor and 
 
         sensory alienation.  Dr. Dobyns again recommended pain management 
 
         center treatment in an effort to teach claimant new patterns of 
 
         function and adjustment.  He indicated that any job she might 
 
         consider should be a one-handed job (exhibits 15 and 20).
 
         
 
              Claimant had fallen on her right arm in early August, 1986, 
 
         but Dr. Dobyns indicated that the fall actually increased the 
 
         range of motion of her wrist and that it did not significantly 
 
         affect her disability (exhibits 14, 15 and 20).
 
         
 
              A second unsuccessful attempt to resume employment was made 
 
         in October, 1986.  Claimant complained of increased symptoms and, 
 
         on the advice of Dr. Dobyns, the attempt was discontinued 
 
         (exhibit 10, page 8; exhibit 20).
 
         
 
              Claimant was evaluated by Warren N. Verdeck, M.D., on 
 
         October 28, 1986.  Dr. Verdeck diagnosed claimant as having a 
 
         post-traumatic reflex sympathetic dystrophy of the right upper 
 
         extremity.  His evaluation showed right shoulder range of motion 
 
         to be 60 degrees for abduction, forward flexion and internal 
 
         rotation.  External rotation was 15 degrees.  Dr. Verdeck agreed 
 
         with the 30% permanent partial disability rating of the extremity 
 
         that was assigned by Dr. Dobyns.  He felt that the problem in 
 
         claimant's shoulder was causally connected to the work injury 
 
         (exhibits 16 and 19).
 
         
 
              John R. Walker, M.D., evaluated claimant on November 3, 
 
         1986.  He rated claimant as having a 10% permanent partial 
 
         impairment of the left lower extremity and a 40% permanent 
 
         partial impairment of the right upper extremity.  When examining 
 
         claimant's right shoulder, he found full, normal flexion, 
 
         extension, internal rotation and external rotation.  He found 
 
         abduction to be unexplainedly limited to 90 degrees.  Dr. Walker 
 
         felt that claimant had a tremendous psychiatric overlay.  He 
 

 
         
 
         
 
         
 
         THOMPSON V. MARSHALL & SWIFT, INC.
 
         Page   6
 
         
 
         
 
         indicated that she probably had some impairment of the shoulder, 
 
         but was unable to determine how much, if any (exhibits 17 and 
 
         18).
 
         
 
              Exhibit 23 is the deposition of Thomas F. DeBartolo, M.D., 
 
         taken September 14, 1987.  Dr. DeBartolo is an orthopaedic 
 
         surgeon who specializes primarily in hand surgery.  Dr. DeBartolo 
 
         became involved in claimant's care in January, 1986 and has 
 
         remained involved since that time.
 
         
 
              Dr. DeBartolo diagnosed claimant's condition as a reflex 
 
         sympathetic dystrophy.  He stated that it is a poorly understood 
 
         condition that is associated with trauma.  Once it develops, it 
 
         is manifested by constant pain, swelling, limitation of motion or 
 
         stiffness and also with certain vasal motor changes which can 
 
         include an altered sweat pattern, a nonphysiologic sense of 
 
         numbness, increased hair growth, changes in skin coloration and 
 
         changes in bone mass.  He stated that it occurs as part of the 
 
         normal response of the autonomic nervous systems to an injury, 
 
         but then for some reason the process does not reverse itself, 
 
         leaving excess fluid, swelling and stiffness (exhibit 23, pages 
 
         61-63).  Dr. DeBartolo has observed increased sweating and 
 
         swelling in claimant's right upper extremity.  He stated that she 
 
         has developed a hand-shoulder pain syndrome and that patients 
 
         with reflex sympathetic dystrophy do not necessarily improve or 
 
         recover with the passage of time (exhibit 23, pages 25-33).
 
         
 
              Dr. DeBartolo testified that claimant's condition has been 
 
         essentially stable since he began treating her in January, 1986. 
 
          He testified that, after the nerve blocks had been administered, 
 
         there was no further treatment to offer.  He indicated that the 
 
         decision to proceed no further toward surgery or other aggressive 
 
         treatment was made in the summer of 1986 as shown in Dr. Dobyn's 
 
         report of August 27, 1986 (exhibit 23, pages 39, 73-75).
 
         
 
              Dr. DeBartolo has not rated claimant's permanent partial 
 
         disability, but stated that, when he first examined her, she had 
 
         limited shoulder motion and diffuse tenderness in her shoulder.  
 
         He felt that claimant has permanent impairment in her right upper 
 
         extremity and shoulder.  Dr. DeBartolo stated that the shoulder 
 
         pain and limitation is related to the reflex sympathetic 
 
         dystrophy and not directly to the injury itself.  He stated that 
 
         his opinion is that it would have made no difference regarding 
 
         whether or not claimant's shoulder was twisted in the original 
 
         trauma.  Dr. DeBartolo stated that any permanent impairment in 
 
         claimant's right upper extremity or shoulder is due to the work 
 
         injury of January, 1985 and that she has no permanent impairment 
 
         from the fall that occurred on or about July 31, 1986 (exhibit 
 
         23, pages 14, 66, 67, 70, 71, 90 and 91).
 
         
 
              Dr. DeBartolo stated that claimant's neck complaints are not 
 
         a structural or physiological problem, but that they are related 
 
         to her posture (exhibit 23, page 79).
 
         
 
              Dr. DeBartolo indicated that pain management center 
 
         treatment may be advisable, dependent upon claimant's success in 
 
         returning to employment.  He stated that the bottom line 
 
         regarding her physical restrictions is that she have a one-armed 
 
         job which involves minimal use of the right upper extremity 
 

 
         
 
         
 
         
 
         THOMPSON V. MARSHALL & SWIFT, INC.
 
         Page   7
 
         
 
         
 
         (exhibit 23, pages 76 and 77).
 
         
 
              Claimant testified that she has had discomfort in her 
 
         shoulder ever since the injury happened, but that, initially, the 
 
         severe pain was in her wrist and forearm.  She stated that the 
 
         pain in her shoulder joint is located in the front of the 
 
         shoulder and also in the back of the shoulder blade.
 
         
 
              Claimant testified that she can briefly perform some 
 
         activities with her right hand such as writing, but that she has 
 
         difficulty holding and carrying things in the right hand.  She 
 
         stated that she is unable to lift her arm above her shoulder, but 
 
         that she does have some motion of the right shoulder.  Claimant 
 
         stated that her automobile is a standard shift and that she uses 
 
         her left hand, rather than the right, to shift the gears when she 
 
         drives by herself.
 
         
 
              Claimant testified that she wants to retain her job and 
 
         desires to continue to work.  She stated that the prior attempts 
 
         to resume employment in 1985 and 1986 produced severe pain and 
 
         that she was therefore unable to follow through with them.
 
         
 
              Claimant testified that she began the process of attempting 
 
         to resume employment in early 1987.  In late March, the employer 
 
         sent a letter inviting her to return to work, but it was 
 
         necessary to get a doctor's report as to restrictions before she 
 
         could actually return to employment.  Claimant stated that she 
 
         did return to work on July 17, 1987 and had continued to work up 
 

 
         
 
         
 
         
 
         THOMPSON V. MARSHALL & SWIFT, INC.
 
         Page   8
 
         
 
         
 
         until the time of hearing.  She stated that she still has 
 
         stabbing pain in the front and back of her shoulder and numbness 
 
         in her wrist and that she has had problems performing the job.  
 
         She stated that she has pain going down from the shoulder joint 
 
         to the elbow and constant numbness in her fingers.  Claimant 
 
         stated that she now works four hours per day and has tried to 
 
         move up to six hours, but that the doctor advised her to remain 
 
         at four hours until she gets along better.  She stated that she 
 
         would like to work up to eight hours per day and work full-time, 
 
         if she could.
 
         
 
              Claimant testified that the Mayo Clinic bill shown in 
 
         exhibit 24 was incurred for treatment of her right arm and 
 
         shoulder.  Claimant stated that, at times, both she and the 
 
         insurance carrier have resisted a pain management clinic program, 
 
         but that she would now like the opportunity to try the program.
 
         
 
              Carol Keel, claimant's mother, testified that she has been 
 
         in regular contact with claimant ever since the injury occurred. 
 
          She stated claimant had no problems with her right hand or arm 
 
         before January, 1985, but since then she has never observed 
 
         claimant carry anything with her right arm.  Keel stated that 
 
         claimant can hold a pencil and write for a short time, but that, 
 
         in general, claimant does not use her right arm and carries it 
 
         close to her body, a position which claimant has indicated is the 
 
         most comfortable for her.  Keel stated that, since the accident, 
 
         both she and her husband have observed the claimant frequently 
 
         and have never seen her use her right arm any differently than 
 
         the use that has been represented at the hearing.
 
         
 
              Robert Thompson, claimant's husband, testified that, prior 
 
         to the injury, claimant was unrestricted in her activities, but 
 
         that, since the accident, she uses her right arm very little.  He 
 
         stated that she cannot move the arm above shoulder level and that 
 
         she does not throw anything with it.  He stated that she can lift 
 
         about a pound and can write with it a little bit.  He 
 
         corroborated claimant's complaints regarding the location and 
 
         nature of her pain and discomfort.
 
         
 
              Cecilia Blaskovich, the owner and manager of the private 
 
         rehabilitation firm Medisult Ltd., and also a registered nurse 
 
         and certified insurance rehabilitation specialist, testified at 
 
         the hearing.  Blaskovich was involved in arranging claimant's 
 
         most recent return to work and in working with the employer to 
 
         modify the job in an attempt to make it suitable for claimant.
 
         
 
              Steven Karabatsos, the plant manager at the Mason City 
 
         Marshall & Swift laundry, testified.  Karabatsos stated that he 
 
         has been with the company 17 years in a variety of positions, 
 
         having started in a part-time position and, through a series of 
 
         promotions, moved through every job in the plant to his current 
 
         position.
 
         
 
              Karabatsos testified that he was upset with the prior 
 
         rehabilitation consultant, IntraCorp, because they did not have a 
 
         representative present when claimant attempted to return to work 
 
         in 1985.  Karabatsos stated that they have tried to do everything 
 
         that claimant, the rehabilitation consultant or her doctor have 
 
         requested in adapting the job to one that claimant can perform.
 

 
         
 
         
 
         
 
         THOMPSON V. MARSHALL & SWIFT, INC.
 
         Page   9
 
         
 
         
 
         
 
              Karabatsos stated that, when claimant initially returned to 
 
         work, it was for two hours per day and that it is now at four 
 
         hours per day.  He stated that full-time work is available to 
 
         claimant whenever she is ready for it.  He stated that there is 
 
         no plan to terminate claimant's employment.
 
         
 
              Linda Rezab, claimant's direct supervisor at the time of 
 
         injury and presently, testified that she has observed claimant at 
 
         work and that claimant has mentioned being uncomfortable, but 
 
         that the company has tried to do whatever the doctors wanted in 
 
         order to enable claimant to resume employment.
 
         
 
              Claimant stated that she was earning $4.00 per hour at the 
 
         time of injury, but that she is now paid $4.20 per hour.
 
         
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              From the stipulations and the evidence, it is clear that 
 
         claimant sustained serious injury on January 8, 1985 which arose 
 
         out of and in the course of her employment.
 
         
 
              The first issue to be determined is claimant's entitlement 
 
         to compensation for healing period as provided by Iowa Code 
 
         section 85.34(l).  The claimant's first actual, successful return 
 
         to work was on July 17, 1987.  In view of the fact that she 
 
         essentially has little industrial use of her right hand, claimant 
 
         will probably never be medically capable of returning to 
 
         employment substantially similar to that in which she was engaged 
 
         at the time of injury.  Therefore, the healing period is 
 
         terminated in this case by the time at which it was medically 
 
         indicated that further significant improvement from the injury 
 
         was not anticipated.  The healing period generally terminates at 
 
         the time when the attending physician determines that the 
 
         employee has recovered as far as possible from the effects of the 
 
         injury.  Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 
 
         (Iowa App. 1981).  The healing period ends at the time that the 
 
         doctor makes the determination that no further improvement is 
 
         forthcoming.  It is not judged by hindsight in looking back to 
 
         the point at which improvement ceased to occur.  Thomas v. 
 
         William Knudson & Son, Inc., 349 N.W.2d 124, 126 (Iowa App. 
 
         1984).  This case presents an extended healing period.  Claimant 
 
         was in various forms of therapy.  In late 1985, Dr. Dobyns 
 
         recommended stellate block therapy.  The employer and insurance 
 
         carrier hesitated for a considerable amount of time before 
 
         allowing that therapy to occur.  It was only after the nerve 
 
         block therapy had proven unsuccessful and it was determined that 
 
         a surgical sympathectomy was not advisable that the physicians 
 
         finally concluded no further improvement in claimant's condition 
 
         would be forthcoming.  That determination was made, as shown by 
 
         exhibit 15, on August 27, 1986.  The healing period is therefore 
 
         determined to run from the date of injury through August 27, 
 
         1986.  It is also at that time that the first permanent partial 
 
         impairment rating was given.
 
         
 
              The next issue to be determined is the nature and extent of 
 
         claimant's permanent partial disability.  The first issue to be 
 
         addressed is whether the injury is limited to a scheduled member 
 

 
         
 
         
 
         
 
         THOMPSON V. MARSHALL & SWIFT, INC.
 
         Page  10
 
         
 
         
 
         or whether it extends into the body as a whole.
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              Where an injury is limited to a scheduled member, the loss
 
         is measured functionally, not industrially.  Graves v. Eagle Iron 
 
         Works, 331 N.W.2d 116 (1983).
 
         
 
              An injury to a scheduled member which, because of 
 
         after-effects  (or compensatory change), creates impairment to 
 
         the body  as  a whole entitles claimant to industrial disability.  
 
         Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 
 
         (1961).  Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 
 
         (1943).  Impairment of the shoulder is considered to be 
 
         impairment of the body as a whole.  Alm v. Morris Barick Cattle 
 
         Co., 240 Iowa 1147, 38 N.W.2d 161 (1949).
 
         
 
              For injury resulting from trauma limited to a scheduled 
 
         member, as occurred in this case, to be compensated industrially, 
 
         the claimant must prove (1) that there is some physical injury, 
 
         derangement or anatomical change that is not limited to a 
 
         scheduled member, (2) the existence of physical impairment or 
 
         functional disability that is not limited to the use of the 
 
         scheduled member, and (3) that the changes were proximately 
 
         caused by the injury to the scheduled member.  Complaints of pain 
 
         and discomfort, without corroborating, objective physical 
 
         findings, are not sufficient.  Lauhoff v. McIntosh, 395 N.W.2d 
 
         834 (Iowa 1986); Kellogg v. Shute and Lewis Coal Co., 256 Iowa 
 
         1257, 130 N.W. 2d 667 (1964 ); Dailey v. Pooley Lumber Co., 233 
 
         Iowa 758, 10 N.W.2d 569 (1943); Schell v. Central Engineering 
 
         Co., 232 Iowa 421, 426, 4 N.W.2d 657 (1946).
 
         
 
              The physicians in this case, with the possible exception of 
 
         Dr. Walker, have all found that claimant's range of motion of her 
 
         right shoulder is limited.  Claimant has made complaints of pain, 
 
         discomfort and limitation affecting her right shoulder.  Dr. 
 
         DeBartolo indicated that the shoulder complaints were part of the 
 
         reflex sympathetic dystrophy with which claimant is afflicted.  
 
         The Mayo Clinic indicated that claimant's right shoulder pain 
 
         appeared to be myofascial in origin and that it should resolve 
 
         with proper shoulder exercises and physical therapy, possibly in 
 
         combination with some trigger point injections (exhibit 11).  A 
 
         neurology consultation by Keith Campbell, M.D., (found at the 
 
         second page of exhibit 15), indicates that an examination of 
 
         claimant had been incomplete because of her inability or 
 
         unwillingness to move the shoulder.  The record clearly shows 
 
         some problem between claimant and Dr. Walker with regard to 
 
         movement of her right shoulder.  There are some unexplained 
 
         variances in the range of motion studies which are found in the 
 
         record.  Dr. Hayreh, on June 10, 1985, found claimant's right 
 
         shoulder motions to be full, free and painless (exhibit 6, page 
 
         1).  Two weeks later, on June 24, 1985, Dr. Janda found her to 
 
         have good motion of the right shoulder with slight pain.  Three 
 

 
         
 
         
 
         
 
         THOMPSON V. MARSHALL & SWIFT, INC.
 
         Page  11
 
         
 
         
 
         days later, on June 27, 1985, right shoulder joint motions were 
 
         painful and guarded (exhibit 1, page 15).  On July 22, 1985, Dr. 
 
         Janda found the motion for abduction, forward flexion, internal 
 
         rotation and external rotation to be 93 degrees, 93 degrees, 65 
 
         degrees and 60 degrees, respectively (exhibit 1, page 16).  On 
 
         August 8, 1985, Dr. Janda found that claimant's shoulder was 
 
         mobilizing with therapy (exhibit 1, page 17).  On September 19, 
 
         1985, Dr. Dobyns found claimant's abduction and forward flexion 
 
         to be 90 degrees each.  He noted that, for internal rotation, she 
 
         could move her hand to the lumbosacral area and that, for 
 
         external rotation, she could move her hand to the back of her 
 
         head (exhibit 7, pages 2 and 3).  On October 29, 1985, Dr. Janda 
 
         found abduction and forward flexion to be 90 degrees each and 
 
         internal rotation and external rotation to be 45 degrees each 
 
         (exhibit 1, page 20).  When Dr. DeBartolo first examined claimant 
 
         on January 14, 1986, abduction had reduced to only 60 degrees, 
 
         but forward flexion had increased to 120 degrees.  Internal 
 
         rotation and external rotation were again characterized by 
 
         putting the hand to the lumbosacral area and back of head, 
 
         respectively (exhibit 10, page 2).  Claimant was next evaluated 
 
         by Dr. Verdeck on October 28, 1986.  On that date, abduction was 
 
         again 60 degrees.  Forward flexion had decreased to only 60 
 
         degrees.  Internal rotation had increased to 60 degrees, but 
 
         external rotation had decreased to 15 degrees (exhibit 16).  When 
 
         claimant was evaluated by Dr. Walker on November 3, 1986, 
 
         approximately five days later, Dr. Walker found forward flexion, 
 
         internal rotation and external rotation to all be full and 
 
         normal, but he found abduction to be 90 degrees.  This represents 
 
         an increase of 30 degrees abduction and remarkable other 
 
         improvement from what Dr. Verdeck had found less than one week 
 
         earlier.  Dr. Walker indicated that it would be unusual to have 
 
         limited abduction when the other motions were not limited 
 
         (exhibit 17).  Having observed claimant's appearance and demeanor 
 
         at hearing, the variances in the range of motion studies for her 
 
         shoulder and the indications from Dr. Walker, there is every 
 
         reason to be skeptical of claimant's testimony regarding her 
 
         shoulder complaints.  Even Dr. Walker, however, opined that the 
 
         shoulder is probably limited (exhibit 18).  The record shows 
 
         unexplainable results from nerve block therapy.  The record 
 
         contains a number of references to psychiatric problems and 
 
         overlays.  Ample basis exists to be suspicious of the credibility 
 
         of claimant's complaints.  Claimant has, nevertheless, been 
 
         treated and evaluated by three eminently qualified orthopaedic 
 
         surgeons, namely, Drs. DeBartolo, Dobyns and Verdeck as well as 
 
         others having a lesser role in the case.  Claimant has apparently 
 
         convinced all of them of the validity of her shoulder complaints.  
 
         There is not a single medical professional who has stated that, 
 
         within a reasonable degree of medical certainty, the injuries do 
 
         not extend into claimant's shoulder.  Accordingly, testimony from 
 
         Dr. DeBartolo, which attributes the shoulder complaints to the 
 
         reflex sympathetic dystrophy, a diagnosis which has been embraced 
 
         by essentially all the physicians, is accepted as being correct. 
 
          Claimant's disability should therefore be evaluated industrially 
 
         under the provisions of Iowa Code section 85. 34(2)(u).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W. 899, 902 (1935) as follows:  "It is therefore plain 
 

 
         
 
         
 
         
 
         THOMPSON V. MARSHALL & SWIFT, INC.
 
         Page  12
 
         
 
         
 
         that the legislature intended the term 'disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability, to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man.O
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 
 
         257 (1963).
 
         
 
              Post-injury earnings create a presumption of earning 
 
         capacity commensurate with the earnings, but they are not 
 
         synonymous with earning capacity. 2 Larson Workmen's Compensation 
 
         Law, section 57.21 and section 57.31; Michael v. Harrison County, 
 
         34th Biennial Report 218 (1979).
 
         
 
              Industrial disability in a workers' compensation case is a 
 
         concept that is quite similar to impairment of earning capacity 
 
         in a tort case.  Impairment of physical capacity creates an 
 
         inference of lessened earning capacity.  The basic element to be 
 
         determined, however, is the reduction in value of the general 
 
         earning capacity of the person rather than the loss of wages or 
 
         earnings in a specific occupation.  Holmquist v. Volkswagon of 
 
         America, Inc., 261 N.W.2d 516 (Iowa App. 1977) 100 A.L.R.3d 143.
 

 
         
 
         
 
         
 
         THOMPSON V. MARSHALL & SWIFT, INC.
 
         Page  13
 
         
 
         
 
         
 
              Claimant is young and intelligent, but her entire employment 
 
         history has involved physical, rather than mental, exertion.  The 
 
         loss of use of a very substantial part of her dominant right hand 
 
         is a severe loss, even though her current rate of earnings is 
 
         higher than the rate which was in effect at the time of injury.  
 
         Claimant does have a 30% functional impairment of the right upper 
 
         extremity, which is equivalent to a 23% impairment of the body as 
 
         a whole.  She has a symptomatic reflex sympathetic dystrophy 
 
         which produces pain and other problems in addition to the loss of 
 
         range of motion.  As a practical matter, she has essentially no 
 
         practical, industrial use of her right hand and arm.  Drs. Dobyns 
 
         and DeBartolo have restricted her to one-armed work.  When all 
 
         the material factors of industrial disability are considered, it 
 
         is found that claimant has a 50% permanent partial disability 
 
         when the impairment of her right upper extremity, including the 
 
         shoulder, and her left lower extremity are all considered.
 
         
 
              When considering the evidence, it becomes apparent that the 
 
         recent injury to claimant's left leg was a temporary aggravation. 
 
          It resolved promptly with conservative treatment.  The permanent 
 
         impairment of the leg, as found by Dr. Walker, is related to the 
 
         high school injury and the resulting surgery which were clearly a 
 
         more serious injury.  The compensable value of a 10% permanent 
 
         partial disability of a leg under section 85.34(2)(o) is 22 weeks 
 
         of compensation.  Clearly, the bulk of claimant's permanent 
 
         partial disability resulted from the injury to her right hand.  
 
         It is determined that the injury of January 8, 1985 produced a 
 
         45% permanent partial disability which requires the employer to 
 
         pay 225 weeks of compensation.  After deducting 22 weeks, which 
 
         represents the compensable value of the preexisting leg 
 
         impairment, the second injury fund is responsible for payment of 
 
         three weeks of compensation for permanent partial disability.  
 
         Second injury Fund v. Mich Coal Company, 274 N.W.2d 300, 304 
 
         (Iowa 1979); Fulton v. Jimmy Dean Meat Co., file number 755039, 
 
         Appeal Decision, July 23, 1986.
 
         
 
              With regard to exhibit 24, the charges from Mayo Clinic in 
 
         the amount of $712.70, the tests and examinations are clearly 
 
         shown to be those that were performed as part of the procedures 
 
         necessary to determine whether sympathectomy surgery was 
 
         warranted.  The reasonableness of the treatment is supported by 
 
         exhibit 15 and the stipulations made by the parties.  Defendants 
 
         are therefore responsible for payment of the bill under the 
 
         provisions of section 85.27 of the Iowa Code.
 
         
 
              Claimant, as a successful party, is entitled to recover 
 
         costs in accordance with Division of Industrial Services Rule 
 
         343-4.33.  Claimant is also entitled to recover interest on any 
 
         amounts of weekly compensation that were not paid at the time the 
 
         same came due under the provisions of Code sections 85.34(2) and 
 
         85.30. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986).  The fact that 
 
         some degree of permanent disability resulted from the injury was 
 
         obvious.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1.  On January 8, 1985, Cheryl A. Thompson was a resident of 
 
         the state of Iowa, employed by Marshall & Swift, Inc. in Mason 
 

 
         
 
         
 
         
 
         THOMPSON V. MARSHALL & SWIFT, INC.
 
         Page  14
 
         
 
         
 
         City, Iowa.
 
         
 
              2.  Thompson was injured on January 8, 1985 when her right 
 
         hand and forearm was pulled into an ironer machine.  The initial 
 
         trauma did not include the shoulder.
 
         
 
              3.  During the weeks and months that followed, claimant 
 
         developed a reflex sympathetic dystrophy of the right upper 
 
         extremity which, in turn, produced impairment in claimant's right 
 
         shoulder.
 
         
 
              4.  Reflex sympathetic dystrophy is a disorder of the 
 
         autonomic nervous system and, as indicated by Dr. DeBartolo, is 
 
         not a problem that is limited to the right arm, but extends into 
 
         the shoulder.
 
         
 
              5.  Following the injury, claimant was medically incapable 
 
         of,performing work in employment substantially similar to the 
 
         work she performed at the time of injury from January 8, 1985 
 
         until August 27, 1986 when her recovery and treatment had 
 
         progressed to the point it was medically indicated that no 
 
         additional treatment options remained and that further 
 
         significant improvement from the injury was not anticipated.
 
         
 
              6.  Cheryl A. Thompson is a 23-year-old married woman who 
 
         graduated from high school, but has no further formal education 
 
         or vocational training.
 
         
 
              7.  Claimant was earning $4.00 per hour at the time of 
 
         injury, but now earns $4.20 per hour.
 
         
 
              8.  All the medical care that claimant has received was 
 
         reasonable treatment for the injury and the expenses charged for 
 
         that treatment were fair and reasonable, including in particular 
 
         the $712.70 charged by the Mayo Clinic as shown in exhibit 24.
 
         
 
              9.  Claimant has a 30% permanent functional impairment of 
 
         the right upper extremity, including the shoulder, which is 
 
         equivalent to a 23% permanent partial impairment of the whole 
 
         person.
 
         
 
             10.  Claimant had a preexisting 10% permanent functional 
 
         impairment of her left lower extremity prior to the time she 
 
         commenced employment with Marshall & Swift, Inc.
 
         
 
             11.  Claimant currently has a 50% overall loss of earning 
 
         capacity, of which 45% was produced by the injuries she sustained 
 
         on January 8, 1985.  The other 5% is related to the preexisting 
 
         impairment of her left leg.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  This agency has jurisdiction of the subject matter of 
 
         this proceeding and its parties.
 
         
 
              2.  The permanent partial disability resulting from the 
 
         injuries claimant sustained on January 8, 1985 extends into the 
 
         body as a whole and her disability should be compensated 
 
         industrially under the provisions of section 85.34(2)(u) rather 
 

 
         
 
         
 
         
 
         THOMPSON V. MARSHALL & SWIFT, INC.
 
         Page  15
 
         
 
         
 
         than as a disability to a scheduled member under section 
 
         85.34(2)(m).
 
         
 
              3.  Claimant has a 50% permanent partial disability when the 
 
         same is evaluated industrially.
 
         
 
              4.  Claimant has a 45% industrial disability that was 
 
         proximately caused by the injuries she sustained on January 8, 
 
         1985.  The other 5% was proximately caused by the high school 
 
         injury to her left knee.
 
         
 
              5.  The employer and its insurance carrier are responsible 
 
         for payment of 225 weeks of compensation for permanent partial 
 
         disability, less credit for the 75 weeks previously paid.
 
         
 
              6.  The Second Injury Fund of Iowa is responsible for 
 
         payment of three weeks of compensation for permanent partial 
 
         disability.
 
         
 
              7.  The employer and insurance carrier are responsible for 
 
         payment of healing period for 85 2/7 weeks of compensation 
 
         commencing January 8, 1985 and ending August 27, 1986.
 
         
 
              8.  The employer and insurance carrier are responsible for 
 
         payment of claimant's remaining unpaid medical expenses at the 
 
         Mayo Clinic in the amount of $712.70.
 
         
 
                                      ORDER
 
         
 
              IT IS THEREFORE ORDERED that the employer and insurance 
 
         carrier pay claimant eighty-five and two-sevenths (85 2/7) weeks 
 
         of compensation for healing period at the stipulated rate of one 
 
         hundred twelve and 02/100 dollars ($112.02) per week commencing 
 
         January 8, 1985.
 
         
 
              IT IS FURTHER ORDERED that the employer and insurance 
 
         carrier pay claimant two hundred twenty-five (225) weeks of 
 
         compensation for payment of permanent partial disability at the 
 
         stipulated rate of one hundred twelve and 02/100 dollars 
 
         ($112.02) per week payable commencing August 28, 1986.
 
         
 
              IT IS FURTHER ORDERED that the employer and insurance 
 
         carrier receive full credit for the fifty-two (52) weeks of 
 
         healing period compensation and seventy-five (75) weeks of 
 
         permanent partial disability compensation that they have 
 
         previously paid.
 
         
 
              IT IS FURTHER ORDERED that all past due, accrued amounts be 
 
         paid to claimant in a lump sum together with interest at the rate 
 
         of ten percent (10%) per annum computed from the date each 
 
         payment came due until the date of actual payment in accordance 
 
         with section 85.30 of the Iowa Code.
 
         
 
              IT IS FURTHER ORDERED that the Second Injury Fund of Iowa 
 
         pay claimant three (3) weeks of compensation for permanent 
 
         partial disability at the stipulated rate of one hundred twelve 
 
         and 02/100 dollars ($112.02) per week payable commencing at the 
 
         time the employer completes making the permanent partial 
 
         disability compensation payments provided in this order, which 
 

 
         
 
         
 
         
 
         THOMPSON V. MARSHALL & SWIFT, INC.
 
         Page  16
 
         
 
         
 
         date is computed to be December 20, 1990.
 
              IT IS FURTHER ORDERED that the employer and insurance 
 
         carrier pay claimant's medical expense with the Mayo Clinic in 
 
         the amount of seven hundred twelve and 70/100 dollars ($712.70).
 
         
 
              IT IS FURTHER ORDERED that the employer and insurance 
 
         carrier pay the costs of this action pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              IT IS FURTHER ORDERED that the employer and insurance 
 
         carrier file Claim Activity Reports as requested by this agency 
 
         pursuant to Division of Industrial Services Rule 343-3.1.
 
         
 
              Signed and filed this 11th day of April, 1988.
 
         
 
         
 
         
 
         
 
         
 
                                           MICHAEL G. TRIER
 
                                           DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Robert S. Kinsey III
 
         Attorney at Law
 
         214 North Adams
 
         P.O. Box 679
 
         Mason City, Iowa 50401
 
         
 
         Mr. Barry Moranville
 
         Attorney at Law
 
         974 73rd Street, Suite 16
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Robert D. Wilson
 
         Assistant Attorney General
 
         Tort Claims Division
 
         Hoover State Office Building
 
         Des Moines, Iowa 50319
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               1802, 1803, 1803.1, 3202
 
                                               Filed April 11, 1988
 
                                               MICHAEL G. TRIER
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         CHERYL A. THOMPSON,
 
         
 
              Claimant,
 
         
 
         vs.
 
         
 
         MARSHALL & SWIFT, INC.,
 
                                                 File No. 784394
 
              Employer,
 
                                             A R B I T R A T I 0 N
 
         and
 
                                                D E C I S I 0 N
 
         U. S. INSURANCE GROUP,
 
         
 
              Insurance Carrier,
 
         
 
         and
 
         
 
         SECOND INJURY FUND OF IOWA,
 
         
 
              Defendants.
 
         
 
         
 
         
 
         
 
         1802, 1803, 1803.1, 3202
 
         
 
              Claimant's right hand and arm was pulled into an ironing 
 
         machine at a commercial laundry.  After medical treatment had 
 
         ended, she was rated as having a 30% permanent functional 
 
         impairment.  Her condition included a reflex sympathetic 
 
         dystrophy.  All the employer-selected physicians indicated that 
 
         the impairment included impairment of the shoulder while 
 
         claimant's own independent section 85.39 physician seemed to 
 
         question whether there was any impairment of the shoulder.  The 
 
         only explanation for the shoulder impairment that was given, 
 
         since the shoulder was not injured in the original trauma, was 
 
         that it was produced by the reflex sympathetic dystrophy.  It was 
 
         held that the injury extended into the body as a whole and 
 
         disability was determined industrially.  The claimant had an 
 
         extended healing period while diagnostic tests were being 
 
         conducted to determine whether or not a sympathectomy surgery 
 
         should be performed.  The healing period was held to end at the 
 
         point when the physicians determined that it should not be 
 
         performed, that no further aggressive treatment was recommended 
 
         and an impairment rating was assigned.
 
         
 
              The Second Injury Fund of Iowa was held responsible for 
 
         payment of three weeks of compensation.  The claimant had a 10% 
 

 
         
 
         
 
         
 
         THOMPSON V. MARSHALL & SWIFT, INC.
 
         Page   2
 
         
 
         
 
         preexisting impairment of the left leg which was found to be 
 
         responsible for a five percent industrial disability.  The 
 
         employer was held responsible for a 45% industrial disability.
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         FRANK E. RIXEN,
 
         
 
              Claimant,
 
                                                 File No. 784536
 
         VS.
 
         
 
         RALSTON PURINA CO.,
 
                                              A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N 
 
         and
 
         
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Frank E. 
 
         Rixen, claimant, against the Ralston Purina Company (Ralston), 
 
         employer, and the Aetna Casualty and Surety Company, insurance 
 
         carrier, for benefits as a result of an alleged injury on July 
 
         25, 1984.  A hearing was held in Davenport, Iowa, on December 18, 
 
         1986 and the case was submitted on that date.
 
         
 
              The record consists of the testimony of claimant and James 
 
         D. Dannels; claimant's exhibits 1 through 7; and defendants' 
 
         exhibits A through T. Neither party filed a brief.
 
         
 
              The parties stipulated that claimant's weekly rate of 
 
         compensation is $269.08; that permanent partial disability 
 
         benefits would commence on December 29, 1984, if awarded; and 
 
         that the contested medical bills are reasonable in amount.
 
         
 
                                  ISSUES
 
         
 
              The contested issues are:
 
         
 
              1)  Whether claimant received an injury that arose out of 
 
         and in the course of his employment;
 
         
 
              2)  Whether there is a causal relationship between 
 
         claimant's alleged injury and his asserted disability;
 
         
 
              3)  Nature and extent of disability; and
 
         
 
              4)  Whether claimant is entitled to benefits pursuant to 
 
         Iowa Code section 85.27 and, if so, the extent of those 
 
         benefits.
 
         
 
                         SUMMARY OF THE EVIDENCE
 
         
 

 
              Claimant testified that he is 49 years old and is currently 
 
         employed by Ralston as a lab monitor.  Claimant gathers samples 
 
         and checks them as a lab monitor.  He has worked for Ralston for 
 
         sixteen years.
 
         
 
              Claimant testified that on July 25, 1984, he twisted his 
 
         right knee while standing at a counter at Ralston.  At the time 
 
         he twisted his right knee, he was turning to throw away samples 
 
         into a wastebasket.  His knee popped at the time of this injury.  
 
         He told a supervisor about this incident and worked until 8:00 
 
         p.m. on the date of injury.  Subsequently, a company doctor 
 
         looked at the knee.  Claimant saw J. E. Ives, M.D., about a week 
 
         later and he treated with Dr. Ives for about a month.  Claimant 
 
         was working during this time period.
 
         
 
              In the fall of 1984, claimant sought treatment from Ralph H. 
 
         Congdon, M.D. He had surgery on November 28, 1984 and returned to 
 
         work thirty-five days later.  Claimant stated that he was unable 
 
         to recall any restrictions being imposed on him at the time he 
 
         returned to work.  Claimant testified that he had no right knee 
 
         problem prior to July 1984.  However, claimant acknowledged a 
 
         left knee problem prior to July 1984.  In 1978, Richard L. 
 
         Kreiter, M.D., did surgery on claimant's left knee.
 
         
 
              Claimant testified that in 1983 his left knee bothered him 
 
         and as result he went to Iowa City for treatment.  His back was 
 
         also bothering him at this time.  Currently, his right knee has a 
 
         burning sensation and he "walks with a little bit of a limp yet." 
 
         Because of his right knee, he cannot squat or bend down.  If he 
 
         tried to squat, "he would fall in a heap."
 
         
 
              On cross-examination, claimant testified that he had been a 
 
         sampler for about a year prior to the incident of July 25, 1984.  
 
         His ingredient sampling job had been eliminated.  On July 25, 
 
         1984, claimant was a lab monitor and had the responsibility for 
 
         gathering samples and checking them.
 
         
 
              On cross-examination, claimant acknowledged that in 
 
         September 1983, he stated to Robert Karr, M.D., that he had dull 
 
         pain in both knees.  See exhibit H, paragraph 2. It was pointed 
 
         out to claimant that exhibit L documents that claimant had left 
 
         knee surgery in 1983, rather than 1978.
 
         
 
              Claimant testified on cross-examination, that at the time he 
 
         injured his right knee on July 25, 1984, he was turning to his 
 
         left.  Claimant stated that his weight was on his right leg.  
 
         Claimant stated that "his knee gave out and then he lost his 
 
         balance." He also stated that "his right knee had not been 
 
         unstable prior to July 25, 1984."
 
         
 
              On recross-examination, claimant acknowledged a "1983 tree 
 
         incident" at his home.
 
         
 
              James D. Dannels testified that he is a safety and training 
 
         person for Ralston and has worked in this capacity for nine 
 
         years.  Mr. Dannels has worked for Ralston for a total of 
 
         seventeen years.  Dannels testified that in 1983 claimant had a 
 
         right knee problem.  Dannels testified on cross-examination that 
 
         in August 1983 claimant was sampling ingredients.  At that time, 
 
         claimant was concerned about standing on cement floors and 
 
         walking.  These activities were part of his job.  Dannels 
 
         contacted Dr. Keister and described claimant's job to the doctor.  
 
         Dr. Keister said that claimant had weak knees, but he told 
 
         Dannels claimant could do his job.  In 1983, walking and climbing 
 

 
         
 
         
 
         
 
         RIXEN V. RALSTON PURINA CO.
 
         Page   3
 
         
 
         
 
         was part of claimant's job.  In 1983, Dr. Keister restricted 
 
         claimant to soft shoes and no prolonged standing.  See 
 
         restrictions contained in claimant's exhibit 1. Dannels testified 
 
         that these restrictions are still in effect.
 
         
 
              Dannels has talked with claimant's wife about claimant's 
 
         knees.  Claimant's wife said to Dannels that "claimant's knees 
 
         give out." This comment was made prior to July 1984.
 
         
 
              Exhibit 2 (dated December 12, 1985) is authored by Dr. 
 
         Kreiter and reads:
 
         
 
              I am writing in regard to information you requested on 
 
              Frank Rixen.  In review of my old records, I see that 
 
              on only one occasion did he complain of some discomfort 
 
              in his right knee.  At that time he had been working 
 
              long hours and had developed an aching along the medial 
 
              aspects of his knees for which he took 10 to 12 
 
              aspirin.  I did obtain x-rays of the knees at that 
 
              time, standing, and his joint compartments were well 
 
              maintained.  As you know he did undergo an arthroscopy 
 
              of the left knee in 1983 but seemed to function 
 
              reasonably well in regard to the right knee until his 
 
              accident or twist in July of 1984.  I certainly cannot 
 
              give any impairment rating to the knee prior to that 
 
              date since it was functional and really had no 
 
              impairment on a physical evaluation.  He does have 
 
              permanency now since he had a partial meniscectomy and 
 
              that would probably give him a 5% permanent disability 
 
              to the leg because of that surgery.
 
         
 
              Exhibit 3 (dated February 15, 1985) is authored by Dr. 
 
         Congdon and reads in part:
 
         
 
              I think this patient's type of mechanism of injury best 
 
              be described as an event that caused the patient to 
 
              become symptomatic to the point of intolerability in a 
 
              condition that was previously tolerable.  I do believe 
 
              he tore his meniscus on the 25th of July 1984 but also 
 
              it was probably not a normal meniscus that finally gave 
 
              way.
 
         
 
              Exhibit H (dated September 6, 1983) is authored by Robert 
 
         Karr, M.D., and reads in part:
 
         
 
              Frank Rixen was seen in the Rheumatology Clinic on 
 
              August 31, 1983, with a diagnosis of chronic low back 
 
              pain, etiology unknown.
 
         
 
              This 45 year old male has a several year history of 
 
              gradual onset of dull, aching pain in both knees, both 
 
              shoulders and low back.  The pain is always exacerbated 
 
              with activity and relieved with rest.
 
         
 
                        APPLICABLE LAW AND ANALYSIS
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received an injury on July 25, 1984 which arose 
 
         out of and in the course of his employment.  McDowell v. Town of 
 

 
         
 
         
 
         
 
         RIXEN V. RALSTON PURINA CO.
 
         Page   4
 
         
 
         
 
         Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central 
 
         Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of July 25, 1984 is causally related 
 
         to the disability on which he now bases his claim. Bodish v. 
 
         Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 
 
         0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A possibility is 
 
         insufficient; a probability is necessary.  Burt v. John Deere 
 
         Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
         question of causal connection is essentially within the domain of 
 
         expert testimony.  Bradshaw v. Iowa Methodist Hospital, 251 Iowa 
 
         375, 101 N.W.2d 167 (1960).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover.  Nicks v. Davenport Produce Co., 254 Iowa 130, 115 
 
         N.W.2d 812, 815
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation 555(17)a.
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler v. United States Gypsum Co., 252 Iowa 
 
         613, 620, 106 N.W.2d 591 (1960), and cases cited.
 
         
 
              The following discussion will assume that claimant had 
 
         trouble with both of his knees prior to July 25, 1984.  In 
 
         resolving this case, I am presented with a fact question that 
 
         depends in part on the resolution of the question of whether 
 
         claimant is a credible witness.  There will be a finding that 
 
         claimant is a credible witness.
 
         
 
              The evidence in this case, both lay and expert, support a 
 
         finding that claimant materially aggravated the condition of his 
 
         right knee at work on July 25, 1984.  Prior to July 25, 1984, 
 
         claimant's right knee may not have been in perfect condition, but 
 
         he was able to work despite its imperfection.  Claimant's 
 
         testimony that he injured his right knee while twisting on July 
 
         25, 1984 is believed.  Claimant has carried his burden of proof 
 
         on the causation issues in this case.
 
         
 
              Claimant is entitled to healing period benefits from July 
 
         25, 1984 for the time periods he was off work.  He is entitled to 
 
         eleven weeks of permanent partial disability benefits based on 
 
         the five percent rating of record.  Defendants also owe the 
 
         contested medical bills as claimant has carried his burden on the 
 
         causation issues in this case.  Any authorization argument fails 
 
         because defendants did not admit this was a compensable injury, 
 

 
         
 
         
 
         
 
         RIXEN V. RALSTON PURINA CO.
 
         Page   5
 
         
 
         
 
         and then assert their statutory right to control the medical care 
 
         given.
 
         
 
                            FINDINGS OF FACT
 
         
 
              1.  On July 25, 1984, claimant was working as a lab monitor 
 
         for Ralston and in this capacity gathered and tested samples.
 
         
 
              2.  On July 25, 1984, claimant injured his right knee while 
 
         standing at a counter at work when turning or twisting to throw 
 
         samples into a wastebasket.
 
         
 
              3.  The injury that claimant sustained on July 25, 1984 
 
         materially aggravated his right knee condition; his right knee 
 
         was not in perfect condition prior to July 25, 1984.
 
         
 
              4.  Claimant's injury of July 25, 1984 resulted in five 
 
         percent (5%) permanent partial impairment to his right lower 
 
         extremity.
 
         
 
              5.  Claimant is a credible witness.
 
         
 
              6.  Claimant's stipulated weekly rate of compensation is two 
 
         hundred sixty-nine and 08/100 dollars ($269.08).
 
         
 
                                        
 
                                CONCLUSIONS OF LAW
 
         
 
              1.  Claimant established by a preponderance of the evidence 
 
         that he materially aggravated his right knee condition on July 
 
         25, 1984 while working for Ralston.
 
         
 
              2.  Claimant established entitlement to weekly benefits and 
 
         medical bills as a result of his right knee injury.
 
         
 
                                   ORDER
 
         
 
              IT IS THEREFORE ORDERED:
 
         
 
              That claimant be paid the healing period and permanent 
 
         partial disability benefits described above with permanent 
 
         partial disability commencing on December 29, 1984; all weekly 
 
         benefits shall be paid at a rate of two hundred sixty-nine and 
 
         08/100 dollars ($269.08).
 
         
 
              That defendants pay the contested medical bills.
 
         
 
              That defendants pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendants be given credit for benefits already paid to 
 
         claimant.
 
         
 
              That defendants pay the costs of this action, pursuant to 
 
         Division of Industrial Services Rule 343-4.33, formerly 
 
         Industrial Commissioner Rule 500-4-33.
 
         
 
              That defendants shall file claim activity reports, pursuant 
 
         to Division of Industrial Services Rule 343-3.1(2), formerly 
 

 
         
 
         
 
         
 
         RIXEN V. RALSTON PURINA CO.
 
         Page   6
 
         
 
         
 
         Industrial Commissioner Rule 500-3.1(2), as requested by the 
 
         agency.
 
                                        
 
         
 
                 Signed and filed this 9th day of February,1987.
 
         
 
         
 
         
 
         
 
         
 
                                            T. J. McSWEENEY
 
                                            DEPUTY INDUSTRIAL COMMISSIONER
 
         Copies to:
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 
         P.O. Box 339
 
         116 East 6th Street
 
         Davenport, Iowa 52805
 
         
 
         Mr. Larry L. Shepler
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 East Third Street
 
         Davenport, Iowa 52801-1550
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1402.40; 1802; 1803
 
                                                 Filed 2-9-87
 
                                                 T. J. McSweeney
 
         
 
                   BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         FRANK E. RIXEN,
 
         
 
              Claimant,
 
                                                 File No. 784536
 
         VS.
 
         
 
         RALSTON PURINA CO.,
 
                                               A R B I T R A T I 0 N
 
              Employer,
 
                                                 D E C I S I 0 N
 
         
 
         and
 
         
 
         AETNA CASUALTY & SURETY
 
         COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1402.40; 1802; 1803
 
         
 
              Held in arbitration that claimant materially aggravated a 
 
         right knee problem.  Healing period and permanent partial 
 
         disability benefits were awarded, and defendants were ordered to 
 
         pay some medical bills.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         ERIC PETERSON,
 
         
 
              Claimant,
 
                                                 File No. 784998
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         IOWA STATE UNIVERSITY,
 
                                                 D E C I S I 0 N
 
            Employer,
 
         
 
         and
 
         
 
         STATE OF IOWA
 
         
 
            Insurance Carrier,
 
            Defendants.
 
         _________________________________________________________________
 
         _
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Robert 
 
         Abbott, Jr., and Eric Peterson, claimants, against Iowa State 
 
         University, employer and State of Iowa, insurance carrier, to 
 
         recover benefits under the Iowa Workers' Compensation Act as a 
 
         result of an injury occurring December 27, 1984.  This matter 
 
         came on for hearing before the undersigned deputy industrial 
 
         commissioner October 9, 1987, and was considered fully submitted 
 
         at the close of the hearing.  The record in this case consists of 
 
         the testimony of the claimants and Eugene S. Lund, Jr., and joint 
 
         exhibits A through L, inclusive.
 
         
 
                                  ISSUES
 
         
 
              Pursuant to the prehearing reports submitted and approved 
 
         October 9, 1987, the issues that remain for determination are 
 
         whether or not the claimants' injuries are the cause of any 
 
         permanent disability and, if so, the nature and extent of the 
 
         disability.
 
         
 
                             FACTS PRESENTED
 
         
 
              Claimant, Robert Abbott, Jr., testified he has been employed 
 
         by Iowa State University at the power plant for about nine and 
 
         one-half years as an electrician.  On December 27, 1984, he 
 
         explained he was working on a volt switch gear when it exploded 
 
         causing burns to his face, arms, neck and left thigh.  He was 
 
         hospitalized until January 4, 1985, and remained off work until 
 
         he was released to return February 25, 1985.  He admitted to 
 
         being paid workers' compensation benefits during this period of 
 
         time.  The only medical restrictions placed on him at the time of 
 
         his release to return to work was that he was to keep the wounds 
 
         as clean as possible and avoid dust, dirt, and fly ash until the 
 
         wounds were completely healed.  Claimant returned to his regular 
 
         job and shortly thereafter was promoted to a high voltage 
 
         electrician.
 

 
         
 
              Claimant (Abbott) testified to scarring on his left and 
 
         right arms, and a slight discoloration around the temples of his 
 
         forehead.  He presents that he is now sensitive to heat, cold and 
 
         sun and that his skin at the places of scarring is sensitive to 
 
         irritation, particularly when the fly ash in the plant mixes with 
 
         his sweat.  Claimant admitted to no lack of strength in his arms, 
 
         that he has missed no further work as a result of his burns since 
 
         he returned and that he has been able to perform all the 
 
         responsibilities of his job.  Claimant testified his skin now has 
 
         a susceptibility to blemishes and that he has an occasional 
 
         recurring nightmare of a ball of fire exploding.  Claimant 
 
         revealed he has also engaged in farming and maintains that the 
 
         because of his sensitivity to cold and sun be has had to somewhat 
 
         curtail his farming activities.  However, claimant acknowledged 
 
         that the state of the farming economy has also impacted his 
 
         agricultural endeavors.  Claimant admitted he fully intends to 
 
         continue in his employment with Iowa State University and that 
 
         physically he can do all that he is supposed to do.
 
         
 
              Claimant Eric Peterson testified he was involved in the same 
 
         accident as Robert Abbott but was burned only on the left side of 
 
         his face and the left arm and hand.  He was hospitalized until 
 
         December 31, 1984, and released to return to work March 4, 1985, 
 
         with the same restrictions as Robert Abbott.  He returned to his 
 
         regular job but advised his supervisor that he no longer wanted 
 
         to work on high voltage electricity because of a lack of 
 
         training.
 
         
 
              Claimant (Peterson) presented scarring on his left hand and 
 
         knuckles with no scarring on his face.  He believes there is a 
 
         loss of strength in his left hand and that he cannot grip things 
 
         with it as he once could.  Claimant identified he is right hand 
 
         dominant.  He, too, explained sensitivities to heat, cold, and 
 
         sun, with some irritations from the fly ash and other particles 
 
         in the air at the power plant.  Claimant acknowledged he has not 
 
         missed any work nor seen any physician since he returned after 
 
         his injury. He explained that while he did not feel his scarring 
 
         prevented him from doing his job, he believes it makes his job 
 
         more difficult, but acknowledged be, too, intends to continue 
 
         working at the Iowa State University power plant.
 
         
 
              Eugene Lund, Jr., testified he is the electricity 
 
         maintenance and controls manager at the power plant and was the 
 
         supervisor of both claimants at the time of the accident.  He 
 
         attested to the fact that neither claimant had missed any work as 
 
         a result of their injuries since their return, both are doing 
 
         their prior jobs and duties and that neither have complained of 
 
         any inability to do the work assigned.  He recalled complaints 
 
         when both claimants first returned to work about fly ash 
 
         irritations, beat and cold, but could not recall any recent 
 
         complaints of the same nature.  Mr. Lund did not dispute both 
 
         claimants' allegations of skin irritations from the fly ash, 
 
         explaining fly ash contains sulphur which, when mixed with a 
 
         liquid such as sweat, will cause a burning sensation.  He 
 
         acknowledged that he has suffered from it also.  Mr. Lund 
 
         expressed no dissatisfaction with either claimants' job 
 
         performance.
 
         
 
              Dr. Ronald S. Bergman saw both claimants for evaluation in 
 
         February 1987.  Of claimant Robert Abbott, Jr., he wrote: "I can 
 
         not see any evidence of post burn of the face, however he does 
 
         have scarring of the left arm.  As far as functional impairment, 
 
         he does not have any." (Joint Exhibit I) Of claimant Eric 
 

 
         
 
         
 
         
 
         PETERSON V. IOWA STATE UNIVERSITY
 
         Page   3
 
         
 
         
 
         Peterson, he wrote: "No evidence of any scarring of the facial 
 
         areas.  There is evidence of scars on the left arm and dorsum of 
 
         the hand.  However, they have healed excellently, and there is no 
 
         impairment of any range of motion.  I do not feel that Mr. 
 
         Peterson has sustained any permanent injury." (Jt. Ex. D)
 
         
 
                              APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              The claimants have the burden of proving by a preponderance 
 
         of the evidence that the injuries of December 27, 1984 are 
 
         causally related to the disabilities on which they now base their 
 
         claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).  Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).  A possibility is insufficient; a probability is 
 
         necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              The expert medical evidence must be considered with all
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondaq v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id. at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 
 
         261 Iowa 352, 154 N.W.7d 128 (1967).
 
         
 
                                        
 
                                     ANALYSIS
 
         
 
              Of first concern is the determination of whether or not 
 
         claimants' injuries are the cause of any permanent disability.  
 
         It is claimants' contention that, as a result of the injuries 
 
         giving rise to the claim, each claimant has sustained a permanent 
 
         partial disability and is entitled to an industrial disability 
 
         award in the case.  It is claimants' argument that, because of 
 
         the injury sustained December 27, 1984, they have been medically 
 
         restricted in a number of job capacities and industrially  
 
         impaired.  Defendants, on the other hand, allege that claimants 
 
         have sustained no permanent impairment or industrial disability 
 
         as a result of the work injuries.  Defendants argue that both 
 
         claimants have been paid the entire amount of the healing period 
 
         benefits during the time in which they recuperated from their 
 
         injuries and that they are not entitled to anything further in 
 
         this proceeding.
 
         
 
              It is not disputed that both claimants went through a 
 
         traumatic ordeal.  However, both have returned to work in their 
 
         regular jobs and have been able to perform those jobs.  The 
 
         employer, likewise, has not been dissatisfied with either's job 
 

 
         
 
         
 
         
 
         PETERSON V. IOWA STATE UNIVERSITY
 
         Page   4
 
         
 
         
 
         performance and has noted no inability or difficulty on the part 
 
         of either claimant to carry out their responsibilities.  Neither 
 
         claimant has had to seek any further medical treatment nor have 
 
         they missed any further work as a result of the accident.  While 
 
         both have asserted a sensitivity to beat, cold, and sun, it has 
 
         not been shown that this has, in any way, impaired their ability 
 
         to work.  Claimant Robert Abbott, Jr., asserts he has had to 
 
         curtail his farming.  However, in light of his own admissions 
 
         concerning the farm economy, it is difficult, at best, to 
 
         attribute this curtailment to the accident or injuries.  Claimant 
 
         Eric Peterson does not want to work on high voltage electricity.  
 
         He candidly attributes this, however, to his lack of training not 
 
         to his accident.  Both claimants are electricians by training and 
 
         qualification.  The record fails to establish their injuries, in 
 
         any way, have interfered with their ability to continue in this 
 
         vocation.  Indeed, both completely admit to an intention to 
 
         remain in their employment at the power plant.
 
         
 
              Both claimants have scarring of the skin.  By observation, 
 
         claimant Peterson's scarring on his left hand and knuckles is 
 
         extensive while claimant Abbott's is barely noticeable 
 
         particularly on his face.  Claimants' own evaluating physician 
 
         could not rate either as having any functional impairment.  While 
 
         claimants argue they have been medically restricted in a number 
 
         of job capacities, no such evidence exists.  Claimants were 
 
         released to return to work with only the restrictions that they 
 
         keep the affected areas as clean as possible until healing was 
 
         complete.  No further restrictions are found in the evidence.  
 
         Both claimants attest to a sensitivity to the fly ash 
 
         particularly when it mixes with sweat and causes a burning 
 
         sensation.  However, Eugene Lund, who did not sustain the 
 
         injuries, attests to the same burning sensation from the fly 
 
         ash.
 
         
 
              On review of the evidence, the question of whether or not 
 
         the injuries have caused any permanent disability to either 
 
         claimant must be answered in the negative.  Neither claimant has 
 
         sustained an injury which has permanently affected their ability 
 
         to perform or obtain work compatible with their qualifications or 
 
         training.  Claimants, therefore, will take nothing from this 
 
         proceeding having already been paid all benefits to which they 
 
         are entitled.
 
         
 
                            FINDINGS OF FACT
 
         
 
              THEREFORE, based on the evidence presented, the following 
 
         facts are found:
 
         
 
              1.  Claimant sustained an injury which arose out of and in 
 
         the course of his employment when a volt switch gear exploded 
 
         causing burns to the left side of his face and left arm and 
 
         hand.
 
         
 
              2.  Claimant was hospitalized and under medical care until 
 
         released to return to work.
 
         
 
              3.  Claimant was paid temporary total disability during his 
 
         period of recuperation.
 
         
 

 
         
 
         
 
         
 
         PETERSON V. IOWA STATE UNIVERSITY
 
         Page   5
 
         
 
         
 
              4.  Claimant has returned to work in his regular job, has 
 
         missed no further work and has sought no further medical. 
 
         attention as a result of his injury.
 
         
 
              5.  Claimant has been able to satisfactorily perform all of 
 
         his job responsibilities.
 
         
 
              6.  Claimant is an electrician by trade and his injury has 
 
         not affected his ability to pursue this vocation.
 
         
 
              7.  Claimant was evaluated by Dr. Ronald S. Bergman and was 
 
         found to have no impairment as a result of the injury.
 
         
 
              8.  Claimant has sustained no permanent disability as a 
 
         result of his injury.
 
         
 
                              CONCLUSIONS OF LAW
 
         
 
              WHEREFORE, based on the principles of law previously stated, 
 
         the following conclusion of law is made:
 
         
 
         
 
              Claimant has failed to establish his injury of December 27, 
 
         1984, has caused any permanent disability.
 
                                        
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              Claimant takes nothing from this proceeding having been paid 
 
         all benefits to which he is entitled.
 
         
 
              Costs of this action are assessed against the defendants 
 
         pursuant to the Division of Industrial Services Pule 343-4.33.
 
         
 
                                        
 
                Signed and filed this 10th day of November, 1987.
 
         
 
         
 
         
 
         
 
         
 
                                          DEBORAH A. DUBIK 
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies to:
 
         
 
         Mr. Thomas M. Werner
 
         Attorney at Law
 
         1150 Polk Boulevard
 
         Des Moines, Iowa 50312
 
         
 
         Mr. Charles S. Lavorato
 
         Assistant Attorney General
 
         Hoover Building
 
         LOCAL
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1800; 1803
 
                                                 Filed 1 1-10-87
 
                                                 Deborah A. Dubik
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         ERIC PETERSON,
 
         
 
              Claimant,
 
                                                 File No. 784998
 
         VS.
 
                                               A R B I T R A T I 0 N 
 
         IOWA STATE UNIVERSITY,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         STATE OF IOWA,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         _________________________________________________________________
 
         
 
         1800; 1803
 
         
 
              Claimant was injured at work when a volt switch gear 
 
         exploded and caused burns.  Following hospitalization and home 
 
         recuperation, he was released to return to work with essentially 
 
         no medical restrictions.  He returned to his regular job, has 
 
         been able to perform all job responsibilities satisfactorily, 
 
         missed no further work, and sought no further medical attention 
 
         as a result of the injury.  The injury did not hamper his ability 
 
         to work as an electrician.  Held claimant failed to establish his 
 
         injury caused any permanent disability.
 
 
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                        BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         LARRY L. SPERRY,
 
         
 
             Claimant,
 
                                                 File No. 785108
 
         VS.
 
                                                   A P P E A L
 
         D & C EXPRESS, INC.,
 
                                                 D E C I S I 0 N
 
             Employer,
 
             Defendant.
 
         _________________________________________________________________
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              Defendant appeals from an arbitration decision awarding 
 
         permanent partial disability benefits of 35 percent of his right 
 
         upper extremity.
 
         
 
              The record on appeal consists of the transcript of the 
 
         arbitration hearing claimant's exhibit 1, and joint exhibits 1 
 
         through 4. Both parties filed briefs on appeal.
 
         
 
                                   ISSUES
 
         
 
              The issues on appeal are whether claimant was an employee of 
 
         the defendant on August 25, 1983 and the appropriate rate of 
 
         weekly compensation, if disability benefits are awarded.
 
         
 
                              REVIEW OF THE EVIDENCE
 
         
 
              The arbitration decision adequately and accurately reflects 
 
         the pertinent evidence and it will not be totally reiterated 
 
         herein.
 
         
 
              Claimant started working for defendant under the terms of a 
 
         written agreement dated April 1, 1983.  On August 25, 1983 
 
         claimant dislocated his right elbow and fractured his right wrist 
 
         while loading a truck with steel for defendant at defendant's 
 
         terminal.
 
         
 
              Defendant was engaged in interstate trucking and under the 
 
         agreement claimant was responsible for hauling loads for the 
 
         defendant.  The claimant furnished a tractor and trailer for this 
 
         purpose and also drove the equipment.  There were occasions when 
 
         claimant would have someone else drive the equipment and 
 
         compensate the driver.  The agreement provided that the equipment 
 
         was in the exclusive possession, control, and use of the 
 
         defendant.  Signs with defendant's name were placed on both sides 
 
         of the
 
         equipment.  Claimant would call defendant each Sunday night to 
 
         learn if loads were available during the coming week.  When loads 
 
         were available the defendant informed the driver of the type of 
 
         freight to be hauled and the destination where the freight was to 
 
         be taken.  A load had to be picked up prior to a certain time and 
 
         delivered by a time usually specified by defendant.  Claimant was 
 

 
         required to call defendant daily to provide information on his 
 
         location.
 
         
 
              Defendant would provide the paperwork for each load, carry 
 
         insurance on the cargo and liability insurance, and compute fuel 
 
         tax owed by a driver.  Claimant paid for collision coverage on 
 
         his equipment.  Defendant required claimant to maintain the 
 
         equipment to meet safety requirements and to maintain accurate 
 
         log books.  Under the agreement claimant was responsible for 
 
         health and workers' compensation insurance.
 
         
 
              Claimant could haul freight for another company under a trip 
 
         lease when returning to Iowa after hauling freight for defendant 
 
         if defendant had no freight available.  On one occasion defendant 
 
         denied permission to claimant to take a trip lease back to Iowa.
 
         
 
              Claimant was paid 78 percent of the gross revenues charged 
 
         for the freight he hauled for the defendant.  The average weekly 
 
         wage figure for the 78 percent of the gross revenues charged is 
 
         $955, less deductions for fees and permits.  Claimant's expenses 
 
         came out of this 78 percent.  Those expenses included fuel, 
 
         maintenance, and compensation to the other drivers.  The 
 
         compensation to the other drivers is 25 percent of the 78 percent 
 
         paid to claimant.  Defendant would on occasion advance money so 
 
         that fuel could be purchased and then deduct the amount advanced 
 
         from the next check.  There were no social security or income 
 
         taxes withheld from the 78 percent paid to claimant and he 
 
         designated himself as self-employed on his tax return.
 
         
 
                                APPLICABLE LAW
 
         
 
              The citations of law in the arbitration decision are 
 
         appropriate to the issues and evidence.
 
         
 
                                 ANALYSIS
 
         
 
              Some of the relevant factors weigh in favor of an 
 
         employer-employee relationship while others indicate an 
 
         independent contractor status for claimant.  The greater weight 
 
         of evidence indicates an employer-employee relationship and 
 
         claimant has made a prima facie showing that the relationship 
 
         exists.  Defendant exercises considerable control over the 
 
         details of claimant's work and driving and defendant has the 
 
         right to exercise this control.  Defendant argues that the 
 
         relationship is one of an independent contractor but has not 
 
         produced sufficient evidence to support that contention.  When 
 
         all factors are
 
         
 
         considered the instant case is very similar to Daggett v. 
 
         Nebraska Eastern Exp., Inc., 252 Iowa 341, 107 N.W.2d 102 (1961) 
 
         and the conclusion reached in that case is appropriate in the 
 
         instant case.  Defendant's attempt to distinguish that case from 
 
         the instant case is not persuasive.  After weighing all relevant 
 
         factors, it is concluded that the deputy was correct in finding 
 
         that claimant was an employee of defendant on August 25, 1983.
 
         
 
              The appropriate rate in this case is computed by utilizing 
 
         claimant's gross average earnings of $955 per week for the 13 
 
         weeks prior to his injury.  This figure is used despite the fact 
 
         that claimant paid for maintenance and other expenses out of this 
 
         weekly amount.  The statutory scheme of rate calculation is 
 
         specific and it was designed to ease the process of calculation.  
 
         It would be an impossible task to determine rate if employee paid 
 
         expenses were taken into account.  Taking into account such 
 

 
         
 
         
 
         
 
         SPERRY V. D & C EXPRESS, INC.
 
         Page   3
 
         
 
         
 
         expenses would lead to absurd results.  For example, in this 
 
         case, claimant would not be entitled to any rate of compensation 
 
         despite the fact he was gainfully employed at the time of his 
 
         injury as he had a net operating loss for tax year 1983.
 
         
 
                           FINDINGS OF FACT
 
         
 
              1.  Claimant owned a truck and a trailer in 1983.
 
         
 
              2.  On April 1, 1983 claimant and defendant signed what was 
 
         styled a lease agreement, with the term of the agreement 
 
         commencing on that date and ending on December 31, 1983, and 
 
         under this arrangement claimant used his equipment to haul for 
 
         defendant.
 
         
 
              3.  Claimant called defendant every Sunday night commencing 
 
         on April 1, 1983 to determine whether defendant had any cargo for 
 
         him to haul.
 
         
 
              4.  Claimant could decline to accept hauls or cargo from 
 
         defendant but doing so could have resulted in termination of the 
 
         relationship between claimant and defendant.
 
         
 
              5.  Claimant had to pick up loads at defendant's Wilton 
 
         terminal during business hours.
 
         
 
              6.  Claimant operated his tractor/trailer under the 
 
         authority of defendant's ICC permit.
 
         
 
              7.  Claimant was told by defendant about 50 percent of the 
 
         time, when he was to arrive at his destinations.
 
         
 
              8.  Claimant was required by defendant in accordance with 
 
         federal and state law, to maintain his equipment so that it was 
 
         reasonably safe; claimant maintained his equipment at his own 
 
         expense.
 
              
 
              9.  Claimant was required by defendant, in accordance with 
 
         ICC regulations, to keep an accurate log book.
 
         
 
              10.  Claimant was paid 78 percent of the gross revenue from 
 
         his hauls for defendant.
 
         
 
              11.  On at least one occasion defendant denied permission to 
 
         claimant to take a trip lease back to Iowa from a destination, 
 
         after he had delivered cargo for the defendant.
 
         
 
              12.  Claimant was required to pick up cargo from defendant 
 
         prior to a certain time.
 
         
 
              13.  Defendant provided claimant with the paperwork for his 
 
         loads, when he hauled for the defendant.
 
         
 
              14.  Defendant handled the licensing and permits for 
 
         claimant's truck.
 
         
 
              15.  Defendant provided the liability insurance coverage for 
 
         claimant's loads with defendant and the liability coverage for 
 
         "trip leases."
 
         
 

 
         
 
         
 
         
 
         SPERRY V. D & C EXPRESS, INC.
 
         Page   4
 
         
 
         
 
              16.  Defendant computed the amount of fuel tax, if any, that 
 
         claimant owed because of his travel in various states hauling 
 
         defendant's cargo.
 
         
 
              17.  Defendant had claimant call in on an 800 phone number 
 
         when he reached a destination in order for it to be determined if 
 
         claimant should bring back a load for defendant.
 
         
 
              18.  Defendant required that claimant call in daily.
 
         
 
              19.  Claimant picked up a paycheck every Friday from 
 
         defendant
 
              which had the word "wage" thereon.
 
         
 
              20.  Defendant paid for claimant's medical treatment at a 
 
         clinic and hospital after his injury on August 25, 1983.
 
         
 
              21.  Defendant's name was displayed on claimant's truck in 
 
         accordance with ICC requirements.
 
         
 
              22.  Defendant would loan drivers, such as claimant, money 
 
         in order for fuel to be purchased and then deduct this amount 
 
         from the weekly paycheck.
 
         
 
              23.  Claimant was an employee of defendant on August 25, 
 
         1983.
 
              24.  Claimant's gross earnings at defendant averaged $955.00 
 
         per week for the 13 week period prior to August 25, 1983.
 
         
 
              25.  On August 25, 1983, claimant supported a spouse and 
 
         three children.
 
         
 
              26.  On August 25, 1983 claimant fell while working as an 
 
         employee for defendant injuring his right elbow and wrist.
 
         
 
              27.  F. Dale Wilson, M.D., has given claimant a 35 percent 
 
         permanent partial impairment rating for claimant's right upper 
 
         extremity and it is so found.
 
         
 
              28.  Claimant reached maximum healing on December 1, 1983.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              The greater weight of evidence indicates that on August 25, 
 
         1983 claimant was an employee of defendant.
 
         
 
              Claimant sustained an injury on August 25, 1983 that arose 
 
         out of and in the course of his employment with defendant.
 
         
 
              As a result of the injury claimant has a 35 percent 
 
         disability in the right upper extremity.
 
         
 
              Claimant has established entitlement to healing period 
 
         benefits from August 25, 1983 through November 30, 1983, except 
 
         for the days that he worked, and entitlement to 87.5 weeks of 
 
         permanent partial disability benefits commencing on December 1, 
 
         1983.
 
         
 
              Claimant's weekly rate of compensation is determined to be 
 

 
         
 
         
 
         
 
         SPERRY V. D & C EXPRESS, INC.
 
         Page   5
 
         
 
         
 
         $520.58 for healing period benefits and $518.00 for permanent 
 
         partial disability benefits.
 
         
 
              WHEREFORE, the decision of the deputy is affirmed.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              That defendant pay weekly disability benefits for healing 
 
         period from August 25, 1983 through November 30, 1983 except for 
 
         the days claimant worked at a rate of five hundred twenty and 
 
         58/100 dollars ($520.58) and eighty-seven and one-half (87 1/2) 
 
         weeks of permanent partial disability benefits commencing on 
 
         December 1, 1983 at a rate of five hundred eighteen dollars 
 
         ($518.00).
 
         
 
              That defendant pay accrued benefits in a lump sum and pay 
 
         interest pursuant to section 85.30, The Code.
 
         
 
              That defendant pay the costs of this action pursuant to
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              That defendant shall file claim activity reports, pursuant 
 
         to Division of Industrial Services Rule 343-3.1(2), as requested 
 
         by the agency.
 
         
 
              That defendant shall file a first report of injury as
 
         required by law.
 
         
 
         
 
              Signed and filed this 10th day of December, 1987.
 
         
 
         
 
         
 
         
 
                                                   DAVID E. LINQUIST
 
                                                   INDUSTRIAL COMMISSIONER
 
         
 
         
 
         Copies To:
 
         
 
         
 
         Mr. Allan Hartsock
 
         Attorney at Law
 
         Fourth Floor, 
 
         Rock Island Bank Bldg.
 
         P.O. Box 428
 
         Rock Island, Illinois 61201
 
         
 
         
 
         Mr. David Scieszinski
 
         Attorney at Law
 
         P.O. Box 394
 
         Wilton, Iowa 52778
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                                 1403.30-1402.10-2001
 
                                                 2002-3001
 
                                                 Filed December 10, 1987
 
                                                 DAVID E. LINQUIST
 
         
 
                      BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         _________________________________________________________________
 
         
 
         LARRY L. SPERRY,
 
         
 
              Claimant,
 
                                                 File No. 785108
 
         VS.
 
                                                   A P P E A L
 
         D & C EXPRESS, INC.,
 
                                                 D E C I S I 0 N
 
              Employer,
 
              Defendant.
 
         
 
         _________________________________________________________________
 
         
 
         1403.30 - 2002
 
         
 
              Defendant failed to establish that claimant was an 
 
         independent contractor.
 
         
 
         1402.10 - 2001
 
         
 
              Claimant was found to be an employee of defendant.
 
         
 
         3001
 
         
 
              Claimant's gross weekly earnings were based upon the total 
 
         amount paid to him by defendant and claimant's expenses were not 
 
         deducted from that amount.
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY L. SPERRY,              :
 
                                          :
 
                 Claimant,                :         File No. 785108
 
                                          :
 
            vs.                           :           R E M A N D
 
                                          :
 
            D & C EXPRESS,                :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
                                   introduction
 
            
 
                 This case has been remanded to the undersigned for the 
 
            purpose of determining the correct rate of compensation to 
 
            be paid in this case.
 
            
 
                 Section 85.36 of The Code presents a number of 
 
            alternatives which can be used in order to compute the 
 
            correct rate of compensation.  Most are based upon actual 
 
            earnings, but subsection 8 permits the application of usual 
 
            earnings where actual earnings cannot be ascertained.  The 
 
            record made in this case does not contain precise current 
 
            information which would permit an accurate determination of 
 
            the claimant's actual wages or earnings.  From the record, 
 
            it is clear that claimant's receipts from D & C Express for 
 
            the 13 weeks preceding the injury averaged $955.00 per week 
 
            (transcript, page 26).  Those receipts represent 78 percent 
 
            of the gross revenues received by D & C Express for the 
 
            loads hauled by Sperry (transcript, pages 57 and 58).  While 
 
            claimant paid expenses for fuel, repairs, maintenance and 
 
            certain other expenses from his share of the gross revenues, 
 
            no evidence of the amount of those actual expenses appears 
 
            in the record.  It is also clear that 25 percent of the 
 
            gross revenues is a usual wage paid to drivers (transcript, 
 
            pages 65, 66 & 68).  It is therefore concluded that 
 
            claimant's rate of compensation should be determined in this 
 
            case under Iowa Code section 85.36(8) since the actual 
 
            earnings cannot be ascertained due to the lack of actual 
 
            expense information.
 
            
 
                 Sperry did not specify whether the 25 percent was based 
 
            upon the gross revenues for the load or the gross receipts 
 
            of the owner-operator, Sperry, which represent 78 percent of 
 
            the gross revenues (transcript, pages 65 and 66).  Jon 
 
            Christensen, manager for D & C Express, explained that 
 
            driver wages are 25 percent of gross for drivers employed by 
 
            D & C Express to drive vehicles owned by D & C Express.  
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
            Since there would be no reduction to 78 percent in that 
 
            situation, it is found that the 25 percent which represents 
 
            wages is based on the gross revenues received by D & C 
 
            Express for the load rather than the gross receipts paid to 
 
            the owner-operator, Sperry.  The figure $955.00 represents 
 
            78 percent of the gross revenues.  One hundred percent of 
 
            the gross revenues is therefore $1,224.36.  Twenty-five 
 
            percent of gross revenues, the amount which represents 
 
            wages, is $306.09.
 
            
 
                 Claimant is entitled to five exemptions, one for 
 
            himself, one for his wife and one for each of his three 
 
            minor children.  The exemptions are established by 
 
            stipulations made in the original prehearing report.  When 
 
            applied to the 1983 benefit schedule, weekly earnings of 
 
            $306.09 provide a rate of compensation of $203.82 for a 
 
            married person with five exemptions.  This method of 
 
            determining the rate of compensation was urged by the 
 
            employer in its brief and argument on appeal to the 
 
            industrial commissioner.  The method of computation was 
 
            likewise urged by the claimant in his statement filed for 
 
            purposes of this remand decision.  The claimant's 
 
            computations are determined to be correct because the 
 
            employer's computations used 25 percent of 78 percent of 
 
            gross revenues, rather than 25 percent of gross revenues as 
 
            Christensen indicated was the correct basis for computing 
 
            driver wages.
 
            
 
                 It is therefore concluded that, since Larry L. Sperry 
 
            has failed to prove his actual expenses, the usual wages of 
 
            25 percent of the gross revenues from the load constitute 
 
            the wages or earnings from which the weekly rate of 
 
            compensation is to be determined.  That rate is $203.82.
 
            
 
                                      order
 
            
 
                 IT IS THEREFORE ORDERED that the employer shall pay 
 
            weekly disability benefits for healing period from August 
 
            25, 1983 through November 30, 1983 and eighty-seven and 
 
            one-half (87 1/2) weeks of permanent partial disability 
 
            compensation commencing December 1, 1983, all as awarded in 
 
            the Appeal Decision entered December 10, 1987, with those 
 
            weekly benefits to be paid at the rate of two hundred three 
 
            and 82/100 dollars ($203.82) per week as determined by this 
 
            decision.  The entire amount is past due and owing and shall 
 
            be paid in a lump sum together with interest pursuant to 
 
            Iowa Code section 85.30 computed from the date each weekly 
 
            payment came due until the date of actual payment.
 
            
 
                 IT IS FURTHER ORDERED that costs are assessed against 
 
            the employer pursuant to Division of Industrial Services 
 
            Rule 343-4.33.
 
            
 
                 
 
            
 
                 Signed and filed this ______ day of ____________, 1990.
 
            
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            
 
            
 
            
 
                 
 
            
 
                 
 
                 
 
                                          ______________________________
 
                                          MICHAEL G. TRIER
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Allan Hartsock
 
            Attorney at Law
 
            4th Floor, Rock Island Building
 
            P.O. Box 4298
 
            Rock Island, Illinois  61204-4298
 
            
 
            Mr. David Scieszinski
 
            Attorney at Law
 
            108 East Fourth Street
 
            P.O. Box 394
 
            Wilton, Iowa  52778
 
            
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                               3001
 
                                               Filed September 11, 1990
 
                                               MICHAEL G. TRIER
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY L. SPERRY,              :
 
                                          :
 
                 Claimant,                :         File No. 785108
 
                                          :
 
            vs.                           :           R E M A N D
 
                                          :
 
            D & C EXPRESS,                :         D E C I S I O N
 
                                          :
 
                 Employer,                :
 
                 Defendant.               :
 
            ____________________________________________________________
 
            
 
            3001
 
            Owner-operator truck driver's wages or earnings for purposes 
 
            of determining rate of compensation were fixed at 25% of the 
 
            gross revenues paid for hauling the load, an amount which 
 
            the evidence showed to be the industry standard.  The record 
 
            did not contain any evidence of actual expenses.  Section 
 
            85.36(8) was used to determine the rate.
 
            
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY MARSHALL,               :
 
                                          :
 
                 Claimant,                :       File No. 785143
 
                                          :
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            U.S. GYPSUM COMPANY,          :
 
                                          :             0 N
 
                 Employer,                :
 
                                          :       A T T O R N E Y
 
            and                           :
 
                                          :           L I E N
 
            CNA INSURANCE COMPANY,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 Attorney Steven Crowley brings this action to secure an 
 
            attorney fee lien.  Mr. Crowley represented Larry Marshall 
 
            in a workers' compensation claim.  Eventually, Mr. Marshall 
 
            was entitled to permanent total disability benefits.
 
            
 
                 Mr. Crowley attempted to secure a lien on the benefits 
 
            payable to Mr. Marshall.  Mr. Marshall, represented by 
 
            Attorney Guy Booth, resisted the application for the lien.  
 
            As a result, a contested case was initiated.
 
            
 
                 This matter came on for hearing on December 17, 1992, 
 
            at Burlington, Iowa.  Claimant, Steven Crowley, appeared.  
 
            Defendant, Larry Marshall, and his attorney, Guy Booth, did 
 
            not appear.
 
            
 
                                 FINDINGS OF FACT
 
            
 
                 The undersigned deputy, having reviewed the file in its 
 
            entirety, finds the following facts:
 
            
 
                 In March of 1982, Larry Marshall was an employee of 
 
            U.S. Gypsum Company.  While performing his regular job 
 
            duties, he was exposed to toxic chemicals and has been 
 
            unable to work since March 19, 1992.
 
            
 
                 In August of 1987, the division of industrial services 
 
            approved an agreement for settlement wherein the parties 
 
            agreed that claimant was permanently and totally disabled as 
 
            a result of the injury in March of 1982.  Claimant was 
 
            represented by Ruther, Bauer, Schulte, Hahn, Swanson & 
 
            Crowley, specifically Attorney Steven Crowley.
 
            
 
                 Attached to Mr. Crowley's application for the approval 
 
            of his attorney lien is a standard contract for services 
 
            dated February 1, 1985, signed by Mr. Marshall and Mr. 
 
            Crowley.
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
            
 
                 Paragraph 3.2 of the contract spells out the essence of 
 
            a contingent fee.  The agreement states the following:
 
            
 
                 In the event of recovery, Client shall pay 
 
                 Attorney the following fee based on the amount of 
 
                 the recovery remaining after payment of all 
 
                 expenses:  a fee equal to 30% of the recovery if 
 
                 settled without filing suit; a fee equal to 33 
 
                 1/3% of the recovery after suit is filed and 
 
                 before notice of appeal to any appellate court; a 
 
                 fee equal to 40% of the recovery after notice of 
 
                 appeal; and a fee equal to 40% of the recovery if 
 
                 retried.
 
            
 
                 A contested case proceeding regarding Mr. Marshall's 
 
            entitlement to workers' compensation benefits was filed 
 
            March 14, 1985.
 
            
 
                         analysis and conclusions of law
 
            
 
                 Iowa Code section 86.39 provides:
 
            
 
                    All fees or claims for legal, medical, 
 
                 hospital, and burial services rendered under this 
 
                 chapter and chapters 85, 85A, 85B, and 87 are 
 
                 subject to the approval of the industrial 
 
                 commissioner, and no lien for such service is 
 
                 enforceable without the approval of the amount of 
 
                 the lien by the industrial commissioner.  For 
 
                 services rendered in the district court and 
 
                 appellate courts, the attorney's fee is subject to 
 
                 the approval of a judge of the district court.
 
            
 
                 The administrative rules which govern practices and 
 
            procedures in front of the division of industrial services 
 
            provide that approval of fees under section 86.39 are 
 
            contested cases (rule 343 IAC 4.1(9)).
 
            
 
                 It has been determined that the following factors are 
 
            to be considered when approving an attorney fee:
 
            
 
                 1.  The terms of any fee agreement.
 
            
 
                 2.  The time and effort reasonably involved in handling 
 
            the case.
 
            
 
                 3.  The novelty and difficulty of the questions 
 
            involved in the case and the skill required to properly 
 
            perform.
 
            
 
                 4.  The reputation, ability, status and expertise of 
 
            the attorney.
 
            
 
                 5.  The likelihood that acceptance of employment will 
 
            preclude the attorney from other employment due to conflicts 
 
            of interest, unfavorable publicity or antagonism with other 
 
            clients or other attorneys.
 
            
 
                 6.  The fee customarily charged in the locality for 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
            similar services.
 
            
 
                 7.  The amount involved in the controversy, the impact 
 
            of the result upon the client and the result actually 
 
            obtained.
 
            
 
                 8.  Time limitations, whether imposed by the client or 
 
            other circumstances.
 
            
 
                 9.  The nature and length of the professional 
 
            relationship between the attorney and the client.
 
            
 
                 Disciplinary Rule 2-106(B) Iowa Code of Professional 
 
            Responsibility for Lawyers.
 
            
 
                 This proceeding involves only the fees for the workers' 
 
            compensation case from the date of the hearing.  In other 
 
            words, Attorney Crowley is not asking for payments from 
 
            workers' compensation benefits previously paid to claimant.  
 
            Although this case was eventually settled by an agreement 
 
            for settlement, the facts of the case indicate it involved 
 
            substantial issues of law and fact which required competent 
 
            handling.  It was probably a case of greater than average 
 
            complexity.
 
            
 
                 No evidence was submitted on the amount of time 
 
            Attorney Crowley spent on the case, nor is there any 
 
            evidence in the record of customary fees in the Burlington, 
 
            Iowa area.
 
            
 
                 This case involved a substantial amount of money, and, 
 
            therefore, the result of the case was critical to the 
 
            claimant.  The results obtained could not have been more 
 
            favorable to claimant, as he was awarded permanent total 
 
            disability benefits.  The entire file indicates that 
 
            claimant's original notice and petition was filed in 1985, 
 
            yet the case was not settled until August of 1987.  
 
            Contained in the agency file are numerous pleadings and 
 
            requests for extension of discovery.  Also included is a 
 
            portion of a deposition.
 
            
 
                 After reviewing the entire file, it is found that 
 
            claimant's fee of 33 1/3 percent of future benefits is 
 
            reasonable.  Attorney Crowley's lien is approved.
 
            
 
     
 
            
 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            Signed and filed this ____ day of January, 1993.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr Guy Booth
 
            Attorney at Law
 
            9th Flr The Center
 
            Cedar Rapids IA 52401
 
            
 
            Mr Steven J Crowley
 
            Attorney at Law
 
            6th Flr Burlington Bldg
 
            P O Box 945
 
            Burlington IA 52601
 
            
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      5-1000
 
                      Filed January 8, 1993
 
                      Patricia J. Lantz
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            LARRY MARSHALL,               :
 
                                          :
 
                 Claimant,                :       File No. 785143
 
                                          :
 
            vs.                           :
 
                                          :       D E C I S I O N
 
            U.S. GYPSUM COMPANY,          :
 
                                          :             0 N
 
                 Employer,                :
 
                                          :       A T T O R N E Y
 
            and                           :
 
                                          :           L I E N
 
            CNA INSURANCE COMPANY,        :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
            5-1000
 
            Attorney lien granted on future benefits pursuant to 
 
            contract and fairness of lien.